And Other Legal Issues for Probation/Parole Officers and Supervisors U.S

ENT OF M JU T S R T U.S. Department of Justice A I P C

E E

A S National Institute of Corrections T N I O O I N T A C L E IN RR ST O ITUTE OF C

Third Edition CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS U.S. Department of Justice National Institute of Corrections 320 First Street N.W. Washington, DC 20534

Morris L. Thigpen, Director

George M. Keiser, Chief Community Corrections Division

J. Richard Faulkner, Jr., Project Manager

National Institute of Corrections World Wide Web Site http://www.nicic.org CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

Third Edition

Rolando V. del Carmen

and

Maldine Beth Barnhill

Gene Bonham, Jr.

Lance Hignite

Todd Jermstad

A PROJECT OF THE NATIONAL INSTITUTE OF CORRECTIONS ■■■

PROJECT STAFF FOR THE THIRD EDITION (2001)

Rolando V. del Carmen Project Director Professor of Criminal Justice Sam Houston State University

Maldine Beth Barnhill Lance Hignite Ph.D. Candidate Ph.D. Candidate Sam Houston State University Sam Houston State University

Gene Bonham, Jr. Todd Jermstad Ph.D. Candidate Legal Counsel Sam Houston State University Community Supervision and Corrections Department Bell County, Texas

■■■

PROJECT STAFF FOR THE SECOND EDITION (1985)

Eve Trook-White Ph.D. Candidate Sam Houston State University

■■■

BOARD OF CONSULTANTS FOR THE FIRST EDITION (1982)

Paul Chernoff Arnold J. Hopkins Justice Director District Court of Newton Division of Parole and Probation West Newton, Massachusetts State of Maryland

Richard Crane Richard E. Longfellow Chief Legal Counsel Deputy Commissioner Department of Corrections Probation Division State of Louisiana State of Georgia

Frank R. Hellum Charles E. Walker, Jr. Research Center West General Counsel National Council on Crime Board of Pardons and Paroles and Delinquency State of Texas

Editor: Melvin T. Axilbund PREFACE TO THE THIRD EDITION

he first edition of this monograph was published in March 1982; the second edition came T out in August 1985. Since then, many changes have taken place in probation and parole law; hence, the need for this third edition.

The changes from the second edition to the third edition are as follows:

■ The second edition has 15 chapters; this third edition has 11 chapters.

■ No chapter has been eliminated; instead some chapters have been combined and others have been transferred to the appendix.

■ Chapter I of the second edition (Preliminary Considerations) is now part of the Introduction.

■ Chapter II of the second edition (Courts and Basic Legal Concepts) is now Appendix A.

■ Chapter X of the second edition (Modification of Conditions and Changes in Status) is now part of Chapter 8.

■ Chapter XIV of the second edition (Liability for Private Programs and Community Service Work) is now part of Chapter 8.

■ New topics are included in this third edition that were not in the second edition. Conversely, some topics in the second edition have been deleted because they have become dated.

■ Cases have been updated, and a massive rewriting has been undertaken.

■ Every chapter features an outline of topics at the beginning of the chapter.

The chapters in the third edition were mainly researched and rewritten by the following:

Maldine Beth Barnhill: Chapter 10 (Liabilities of Supervisors) Lance Hignite: Chapter 5 (Presentence/Preparole Investigations and Reports) and Chapter 6 (Liability of Parole Board Members for Release or Nonrelease) Todd Jermstad: Chapter 7 (Conditions, Modifications, and Changes in Status), Chapter 8 (Supervision), and Chapter 9 (Revocation)

The rest of the chapters were revised by Rolando V. del Carmen, who also edited, supervised, and reviewed the revision.

I would like to thank the National Institute of Corrections for making this third edition possible. In particular, thanks to Rick Faulkner and George Keiser of the National Institute of Corrections. Without their initiative and support, this project would not have been possible. Rick Faulkner first suggested the revision, which was approved by George Keiser. Thanks are also extended to Dan Beto, Director of the Corrections Management Institute of Texas, for his help and support and for the many things he has done to make this publication known and available to the field personnel for whom it has been written.

iii I express gratitude to the Board of Consultants and legal researchers of the first edition, who did the groundbreaking job for the monograph. Thanks are also due to Eve Trook-White, the main assistant for the second edition. The third edition would not have been possible without the help of Gene Bonham, Jr., former Director of Community Corrections and parole officer in Kansas, who is currently a Ph.D. student in the College of Criminal Justice. He helped perform the legal research and took care of a lot of minutiae; without his assistance, the revision would have been even more tedious for me.

I would also like to thank Dean Richard Ward of the College of Criminal Justice, Sam Houston State University, for the support given to the project in a multitude of ways.

This monograph, from the first edition to the third, has truly been the product of collaboration between the author and myriad people. As usual, however, in a revision of this magnitude, there may be errors and shortcomings. Those are entirely mine.

Rolando V. del Carmen College of Criminal Justice Sam Houston State University August 2000 UPERVISORS S FFICERS AND O AROLE /P ROBATION P SSUES FOR I EGAL L THER O IABILITIES AND L IVIL C iv ABOUT THE AUTHORS

Rolando V. del Carmen is Distinguished Professor of Criminal Justice, College of Criminal Justice, Sam Houston State University.

Maldine Beth Barnhill is a doctoral student, College of Criminal Justice, Sam Houston State University. She has a law degree from the University of Georgia.

Gene Bonham, Jr., is a doctoral student, College of Criminal Justice, Sam Houston State University. He served for 9 years as Director of Community Corrections for the 6th Judicial District in Kansas and was also a parole officer in the State of Kansas.

Lance Hignite is a doctoral student, College of Criminal Justice, Sam Houston State University.

Todd Jermstad is currently Legal Counsel, Community Supervision and Corrections Department, Bell County, Texas. He previously served as Assistant General Counsel of the Texas Department of Criminal Justice.

CONTENTS 1 CHAPTER 1CHAPTER 2 Legal Liabilities...... 3Federal and An Overview of State CasesCHAPTER 3Tort ...... 15 Law: State State Civil Liability Under CHAPTER 4 1983 Cases Law: Section Federal Civil Liability Under ...... 29 CHAPTER 5 and Indemnification...... 41 Fees, Attorneys’ Legal Representation, CHAPTER 6 and Reports...... 53 Investigations Presentence/Preparole CHAPTER 7 or Nonrelease...... 69 for Release Members Board Liability of Parole CHAPTER 8 and Changes in Status...... 83 Conditions, Modifications, CHAPTER 9 Supervision...... 109 CHAPTER 10 Revocation ...... 139 Liabilities of Supervisors...... 163 CHAPTER 11 Advice...... 183 Concerns, and General Specific Questions, AAPPENDIX Legal Concepts and Basic The Court System ...... 191 BAPPENDIX Terms...... 201 Glossary of Legal CONTENTS THE THIRD TO EDITIONPREFACE ...... iii ABOUT THE AUTHORS ...... v INTRODUCTION......

INTRODUCTION

e live in an increasingly litigious society. One result is more lawsuits against government Wagencies and public officials. As the first edition noted, the largest target is the federal government, which was sued more than 30,000 times in 1980; the plaintiffs in those actions asked for damages in excess of $4.3 billion.1 Add to this the comparable suits filed in state courts, and the full magnitude of the trend and the problems it presents becomes clear. As one writer stated, “If we wanted a new national motto, summing up the great national pastime, we could put it in two words: Sue ’em.”2

When this monograph was first published in March 1982, only a few probation/parole officers had been involved personally in civil or criminal cases that put their professional conduct in issue. Although no reliable or official figures are available because no national or state survey has recently been conducted, it is safe to say, from decided cases, that the number of probation/parole liability lawsuits has increased in recent years.

Lawsuits of the type discussed here stem from allegations of nonperformance and improper performance of official duties and responsibilities. This publication examines mainly the concerns of probation/parole officers that appear to offer the most fertile grounds for litigation. It is written primarily for probation and parole personnel (including supervisors and administrative officials) but may also be of interest to lawyers and judges. While the monograph is directed at an audience that does not have extensive legal training, the footnotes have been conformed to the most widely recognized legal system of citation.

Court decisions continue to widen the net and add to the categories of officials who may be held legally responsible for acts performed while in office. What started as sporadic liability lawsuits in the early sixties directed primarily at prison personnel have now evolved into a nationwide pattern of greater liability for all public officials, particularly the police, probation, and parole officers.

Lawsuits are filed by the public and by employees against their supervisors and agencies. The United States is a litigious society and there are no signs of that abating in the immediate future. If anything, lawsuits will likely continue to escalate despite efforts at reform by state legislatures and the Congress of the United States, primarily through capping damage awards in state tort cases.

Probation and parole officers must be properly informed about legal liabilities. This monograph seeks to do that and to help them understand basic liability concepts in the hope that such information will lead to lawsuit avoidance. As public officers, they are vested with varying degrees of authority essential for effective task performance. With this authority comes an obligation to act responsibly and in accordance with law. More than ever, the general public demands accountability in all phases of public service. This is particularly true in the criminal justice system, where lives and personal liberties are often at stake. This accountability takes the form of possible civil or criminal liabilities for breach of duty and violation of rights. The courts have long abandoned their “hands off” policy in favor of a virtual “open door” era concerning citizen complaints. Accountability, court scrutiny, and greater job visibility are realities with which probation/parole officers must learn to live and cope.

1 There was a time when probation/parole officers were insulated from litigation. Those days are gone and are likely to be gone forever. During the past few years, many cases have been filed against officers and supervisors seeking to hold them accountable for what they may or may not have done. It is therefore necessary for probation and parole personnel to be familiar with basic concepts in legal liabilities if they are to protect themselves against possible lawsuits. Judicial officers (judges and prosecutors) are vested with absolute immunity, but probation/parole officers enjoy only qualified immunity. Moreover, while states generally enjoy immunity from lawsuits (unless waived), state officers and local government agencies and employees do not have this immunity. Probation/parole officers, therefore, whether they are state or local employees, are susceptible to liability lawsuits in whatever they do that is related to their job.

Variation abounds in probation/parole law among different jurisdictions. Advice given in the first edition was true then as it is now:

This manual was written to provide general information. It is not designed to give authoritative legal advice on specific problems. Probation/parole officers are strongly urged to seek prompt advice and counsel from legal advisors if faced with specific legal questions.

As was the wish in the previous editions, it is hoped that this third edition will fill the void for information on the legal liabilities in general, and civil liabilities in particular, of probation/parole personnel on all levels. We hope the information is useful for those who need it.

Notes 1. Houston Chronicle, January 11, 1981, at 18.

2. Id. UPERVISORS S FFICERS AND O AROLE /P ROBATION P SSUES FOR I EGAL L THER O IABILITIES AND L IVIL C

2 CHAPTER 1 of Rights Civil Rights Color of Law 2. Title 42 of the U.S. Code, Section 1985—Conspiracy to Interfere With With 1985—Conspiracy to Interfere 42 of the U.S. Code, Section 2.Title the Law Rights Under 1981—Equal Section 42 of the U.S. Code, Title 3. of Rights Under 242—Deprivation 18 of the U.S. Code, Section Title 1. Against Rights 241—Conspiracy 18 of the U.S. Code, Section Title 2. Activities Protected 245—Federally 18 of the U.S. Code, Section Title 3. 1. Title 42 of the U.S. Code, Section 1983—Civil Action for Deprivation 1983—Civil Action 42 of the U.S. Code, Section Title 1. 1. State Tort Law Tort 1. State Laws Civil Rights 2. State Officers at Public Aimed Specifically Code Provisions Penal 1. State Acts Criminal Punishing Code Provisions Penal 2. Regular THE ABOVE LAWS? YES. LAWS? THE ABOVE B. Liabilities Criminal A. Liabilities Civil A. Law State Tort Liability Under Civil B. Law State Liability Under Criminal I. UNDER STATE LAW I. UNDER STATE II. UNDER FEDERAL LAW III. MAY AN OFFICER BE HELD LIABLE UNDER ALL OF AN OFFICER BE HELD LIABLE UNDER III. MAY INTRODUCTION An Overview of State and Federal and An OverviewState of Legal Liabilities CHAPTER 1 CHAPTER IV. DIFFERENT RESULTS IF HELD LIABLE

V. POSSIBLE DEFENDANTS IN CIVIL LIABILITY CASES

A. Government Agency as Defendant B. Individual Officers as Defendants 1. State Officers 2. Officers of Nonstate Agencies

VI. KINDS OF DAMAGES AWARDED IN CIVIL LIABILITY CASES

A. Actual or Compensatory Damages B. Nominal Damages C. Punitive or Exemplary Damages

SUMMARY

NOTES CHAPTER INTRODUCTION the criminal justice system may be held liable for any or all of the above provisions based he array of legal liabilities to which on a single act. For example, assume that a parole officer unjustifiably uses excessive force 1 probation/parole officers may be T A exposed are many and varied. They range on a parolee. Conceivably, he or she may be N O from state to federal laws and from civil to liable under all of the above provisions. He or OF VERVIEW criminal laws. For purposes of an overview, she may be liable for conspiracy if he or she legal liabilities may be classified as shown in acted with another to deprive the parolee of his civil rights, as well as for the act itself,

table 1–1. S which constitutes the deprivation. The same AND TATE Note that in addition, the officer may be parole officer may be prosecuted criminally subject to agency administrative disciplinary and civilly under federal law and then be held F procedure that can result in transfer, suspen- criminally and civilly liable under state law EDERAL sion, demotion, dismissal, or other forms for the same act. The double jeopardy defense cannot exempt him from multiple liabilities of sanction. Disciplinary procedures are L defined by state law or agency policy. because double jeopardy applies only in crim- EGAL

inal (not civil) cases, and only when two L The above legal liabilities apply to all public criminal prosecutions are made for the same IABILITIES officers and not just to probation/parole offi- offense by the same jurisdiction. Criminal cers. Police officers, jailers, prison officials, prosecution under state and then under feder- juvenile officers, and just about any officer in al law for the same act is possible. If this is

Table 1–1. Classification of Legal Liabilities Under State and Federal Law I. Under State Law II. Under Federal Law A. Civil Liabilities 1. State tort law 1. Title 42 of the U.S. Code, Section 1983—Civil Action for Deprivation of Rights

2. State civil rights laws 2. Title 42 of the U.S. Code, Section 1985—Conspiracy to Interfere With Civil Rights

3. Title 42 of the U.S. Code, Section 1981—Equal Rights Under the Law

B. Criminal Liabilities 1. State penal code 1. Title 18 of the U.S. Code, provisions aimed specifically Section 242—Deprivation of Rights at public officers Under Color of Law

2. Regular penal code provisions 2. Title 18 of the U.S. Code, punishing criminal acts Section 241—Conspiracy Against Rights

3. Title 18 of the U.S. Code, Section 245—Federally Protected Activities 5 done, it indicates that the second prosecut- devising new categories of protected rights. ing authority believes that justice was not For example, the Federal Civil Rights Act of obtained in the first prosecution. 1964 prohibits discrimination on the basis of race, religion, color, national origin, sex, All of the above types of liability are dis- and pregnancy. These laws are enforceable cussed briefly in this chapter. As indicated, by the federal government, but they may liability can be classified according to federal also be enforceable by the state if enacted as or state law. state statutes. The penalty or punishment imposed, therefore, is on the state level, and ■■■ enforcement of the law may be done by the state. I. UNDER STATE LAW B. Criminal Liability Under here are two basic types of liability State Law T under state law: civil and criminal. 1. State Penal Code Provisions Aimed Specifically at Public Officers A. Civil Liability Under State State criminal liability can come under a Tort Law provision of the state penal code specifically 1. State Tort Law designed for public officers. For example, Section 39.03 of the Texas Penal Code con- This liability is more fully discussed in Chap- tains a provision on “Official Oppression” ter 2 (State Tort Cases). For purposes of this that states that a public servant acting under overview section, the following information color of his office or employment commits should suffice. an offense if he: Tort is defined as “a wrong in which the a. Intentionally subjects another to mistreat- action of one person causes injury to the per- ment or to arrest, detention, search, son or property of another in violation of seizure, dispossession, assessment, or lien

UPERVISORS a legal duty imposed by law.” Torts may

S that he knows is unlawful; or involve a wrongdoing against a person, such as assault, battery, false arrest, false imprison- b. Intentionally denies or impedes another ment, invasion of privacy, libel, slander, in the exercise of enjoyment of any right, FFICERS AND O wrongful death, and malicious prosecution; privilege, power, or immunity knowing his conduct is unlawful; or

AROLE or against property, such as trespass. A tort /P may be intentional (acts based on the intent c. Intentionally subjects another to sexual of the actor to cause a certain event or harm) harassment. ROBATION

P or caused by negligence. Probation/parole officers may therefore be held liable for a tor- A questionnaire sent to state attorneys gen- tious act that causes damage to the person or

SSUES FOR eral and probation/parole agency legal coun- I property of another. Note that Section 1983 sel asked if their states had statutes providing EGAL L actions, federal cases, are sometimes referred for criminal liability for probation, parole, to as “tort cases,” but the reference is to fed-

THER and public officers in general. The results O eral rather than state torts. show that only a few states have statutes pertaining to liability for probation/parole offi- 2. State Civil Rights Laws cers specifically, 8 percent in both cases, but IABILITIES AND

L Many states have passed civil rights laws of 84 percent of the states have statutes con-

IVIL their own, either replicating the compendium cerning the criminal liability of public offi- C of federal laws that have been enacted or cers in general. 6 CHAPTER 2. Regular Penal Code Provisions tion. Refer to that chapter for an exhaustive Punishing Criminal Acts discussion of liability under federal law. In addition to specific provisions, proba- 2. Title 42 of the U.S. Code, Section 1 tion/parole officers may also be liable just A like any other person under the provisions 1985—Conspiracy to Interfere With N Civil Rights O of the state criminal laws. Under Texas OF VERVIEW criminal code, for example, they may be Section 1985(3) provides a civil remedy liable for murder, manslaughter, serious against any two or more persons who: physical injury, etc., done to any probationer S or parolee. a. Conspire to deprive a plaintiff of the AND TATE equal protection of the law or equal privi- ■■■ leges and immunities under the law, with F b. A purposeful intent to deny equal protec- EDERAL II. UNDER FEDERAL tion of the law, L LAW c. When defendants act under color of state EGAL law, and L IABILITIES A. Civil Liabilities d. The acts in furtherance of the conspiracy injure the plaintiff in his person or prop- 1. Title 42 of the U.S. Code, Section erty, or deprive him of having and exercis- 1983—Civil Action for Deprivation ing any right or privilege of a citizen of of Rights the United States. Every person who, under color of any statute, ordinance, regulation, custom, This section, passed by the United States or usage, of any State or Territory or Congress in 1861, provides for civil damages the District of Columbia, subjects, or to be awarded to any individual who can causes to be subjected, any citizen of show that two or more persons conspired to the United States or other person with- deprive him of civil rights. Note that a pro- in the jurisdiction thereof to the depri- bation/parole officer may therefore be held vation of any rights, privileges, or civilly liable not only for actually depriving immunities secured by the Constitution a person of his civil rights (under Section and laws, shall be liable to the party 1983), but also for conspiring to deprive injured in action at law, suit in equity, that person of his civil rights (under Section or other proper proceeding for redress, 1985). The two acts are separate and distinct except that in any action brought and therefore may be punished separately. against a judicial officer for an act or Under this section, it must be shown that omission taken in such officer’s judicial the officers got together and actually agreed capacity, injunctive relief shall not be to commit the act, although no exact state- granted unless a declaratory decree ment of a common goal need be proven. In was violated or declaratory relief was most cases, the act is felonious in nature (as unavailable. For the purpose of this sec- opposed to a misdemeanor) and is aimed at tion, any Act of Congress applicable depriving the plaintiff of his civil rights. The exclusively to the District of Columbia plaintiff must also be able to prove that the shall be considered to be a statute of the officers purposely intended to deprive him District of Columbia. of equal protection that is guaranteed him by law. This section, however, is seldom used This section is discussed separately in against public officers because the act of Chapter 3 because the overwhelming num- conspiracy is often difficult to prove except ber of current cases is filed under this sec- through the testimony of coconspirators. 7 Moreover, it is limited to situations in which B. Criminal Liabilities the objective of the conspiracy is invidious 1. Title 18 of the U.S. Code, Section 242— discrimination, which is difficult to prove in Deprivation of Rights Under Color of Law court. It is difficult for a plaintiff to establish Whoever, under color of any law, in a trial that the probation/parole officer’s statute, ordinance, regulation, or cus- action was discriminatory based on sex, race, tom, willfully subjects any person of or national origin. any State, Territory, Commonwealth, Possession, or District to the depriva- 3. Title 42 of the U.S. Code, Section 1981—Equal Rights Under the Law tion of any rights, privileges, or immunities secured or protected by the a. All persons within the jurisdiction of the Constitution or laws of the United United States shall have the same right in States, or to different punishments, every State and Territory to make and pains, or penalties on account of such enforce contracts, to sue, be parties, give person being an alien, or by reason of evidence, and to the full and equal benefit his color, or race than are prescribed of all laws and proceedings for the security for the punishment of citizens, shall be of persons and property as is enjoyed by fined under this title or imprisoned not white citizens, and shall be subject to like more than one year, or both; and if punishment, pains, penalties, taxes, licens- bodily injury results from the acts comes, and exactions of every kind, and to no mitted in violation of this section or if other. such acts include the use, attempted b. For purposes of this section, the term use, or threatened use of a dangerous “make and enforce contracts” includes the weapon, explosives, or fire, shall be making, performance, modification, and fined under this title or imprisoned not termination of contracts, and the enjoy- more than ten years, or both; and if ment of all benefits, privileges, terms and death results from the acts committed conditions of the contractual relationship. in violation of this section or if such acts include kidnapping or an attempt c. The rights protected by this section are UPERVISORS

S to kidnap, aggravated sexual abuse, or protected against impairment by non- an attempt to commit aggravated sexual governmental discrimination and impair- abuse, or an attempt to kill, shall be ment under color of State law.

FFICERS AND fined under this title, or imprisoned for O any term of years or for life, or both, or This section was passed in 1870, a year earli- AROLE may be sentenced to death. /P er than Section 1983. Until recently, the plaintiff had to show that he was discrimi- This section provides for criminal action

ROBATION nated against because of his race, thus limit- P against any officer who actually deprives ing the number of potential plaintiffs. another of his civil rights. An essential element of this section is for the government to SSUES FOR I Section 1981 has been widely used in be able to show that the officer, acting “under

EGAL employment and housing discrimination

L color of any law,” did actually commit an act cases (under its contracts and equal benefits that amounted to the deprivation of one’s THER

O provisions). However, currently the equal civil rights. Essential elements of Section 242 punishments provision is of greatest signifi- are the following: (a) the defendant must cance for probation and parole authorities.1 have been acting under color of law; (b) a

IABILITIES AND deprivation of any right secured by federal L

IVIL laws and the United States Constitution; and C (c) specific intent on the part of the defen- 8 dant to deprive the victim of rights. CHAPTER 2. Title 18 of the U.S. Code, Section 241— there is no such requirement under Section Conspiracy Against Rights 241; hence, a private person can commit If two or more persons conspire to Section 241. 1 injure, oppress, threaten, or intimidate A any person in any State, Territory, 3. Title 18 of the U.S. Code, Section 245— N O

Commonwealth, Possession, or Dis- Federally Protected Activities OF VERVIEW trict in the free exercise or enjoyment This section is aimed at private individuals of any right or privilege secured to but is also applicable to public officers who him by the Constitution or laws of the forcibly interfere with such federally protect- S United States, or because of his having ed activities as: AND TATE exercised the same; or ■ Voting or running for an elective office. F

If two or more persons go in disguise EDERAL ■ Participating in government-administered on the highway, or on the premises of programs.

another, with the intent to prevent or L hinder his free exercise or enjoyment of ■ Applying for or enjoying the benefits of EGAL federal employment. any right or privilege so secured—They L IABILITIES shall be fined under this title or impris- ■ Serving as juror in a federal court. oned not more than ten years, or both; and if death results from the acts com- ■ Participating in any program receiving mitted in violation of this section or federal financial assistance. if such acts include kidnapping or an attempt to kidnap, aggravated sexual Violations of Section 245 carry a fine or abuse or an attempt to commit aggra- imprisonment of not more than 1 year, or vated sexual abuse, or an attempt to both. Should bodily injury result from a viola- kill, they shall be fined under this title tion, or if such acts include the use, attempted or imprisoned for any term of years or use, or threatened use of a dangerous weapon, for life, or both, or may be sentenced explosive, or fire, the violator may be fined or to death. imprisoned not more than 10 years, or both. Should death result from the acts committed As interpreted by the courts, this section in violation of this section, or if such acts requires the following: (1) the existence of include kidnapping, attempt to kidnap, aggra- a conspiracy whose purpose is to injure, vated sexual abuse or an attempt to commit oppress, threaten, or intimidate; (2) one or aggravated sexual abuse, or an attempt to kill, more of the intended victims must be a the violator may be fined under this title or United States citizen; and (3) the conspiracy imprisoned for any term of years or for life, must be directed at the free exercise or or both, or may be sentenced to death. This enjoyment by such a citizen of any right or is a more recent federal statute, passed in 1968, privilege under federal laws or the United which seeks to punish private individuals who States Constitution. forcibly interfere with federally protected activities. Therefore, it applies to probation/parole The main distinction between Section 242 officers who act in their private capacity. The and Section 241 is that Section 242 punish- first part of the law penalizes a variety of acts, es the act itself, whereas Section 241 pun- as already noted. The second part refers to ishes the conspiracy to commit the act. deprivations of such rights as attending a pub- Inasmuch as conspiracy, by definition, needs lic school or college; participating in state or at least two participants, Section 241 cannot locally sponsored programs; serving on a state be committed by a person acting alone. jury; participating in interstate travel; or using Moreover, while Section 242 requires the accommodations serving the public, such as officer to be acting “under the color of law,” eating places, gas stations, and motels. The 9 third part penalizes interference with persons trative in nature and is neither a civil nor a who encourage or give an opportunity for oth- criminal proceeding. ers to participate in or enjoy the rights enumerated in the statute. It is distinguished from An example of the applicability of these laws Sections 241 and 242 in that a person acting is what happened to the police officers (who singly and in a private capacity can violate it. are public officials like probation/parole offi- This law is seldom used at present. cers) in the infamous Rodney King beating case. In that case, the officers were first sus- ■■■ pended and then dismissed from employment by the agency (administrative liability). They were then tried for criminal acts (in III. MAY AN OFFICER Simi Valley) in state court, but all were BE HELD LIABLE acquitted. After acquittal, they were tried again for criminal acts (in Los Angeles) in UNDER ALL OF THE federal court. Two of the four defendants ABOVE LAWS? YES. were acquitted, but the other two were convicted and served time in a federal institution. The officers raised the double jeopardy he whole array of laws outlined above defense on appeal, but that did not succeed may apply to a probation/parole officer T because they were tried by two different based on a single act, if the required ele- jurisdictions. The officers were also held ments for liability are present. For example, liable for civil damages, in addition to the an act of an officer that leads to the wrong- administrative and criminal proceedings. ful death of an offender may subject the officer to liability under state and federal ■■■ laws. Under each, the officer may be held liable civilly, criminally, and administratively. IV. DIFFERENT The defense of double jeopardy does not apply in these cases because double jeopardy RESULTS IF HELD UPERVISORS S applies only if there are successive prosecu- LIABLE tions for the same offense by the same jurisdiction. Civil and criminal penalties may

FFICERS AND ivil liability results in payment of O result from a single act because “successive money by the defendant to the plaintiff prosecution” requires that both cases are C AROLE for damages or injury caused. In civil liabili- /P criminal; hence, it does not apply if one case ty cases, therefore, the plaintiff seeks money, is criminal and the other civil. Criminal although, in Section 1983 (federal) cases,

ROBATION prosecutions may also take place in state P the plaintiff may also seek changes in agency court and federal court for the same act. policy or practice in addition to monetary There is no double jeopardy because of the compensation. Sanctions imposed in crimi- SSUES FOR I “same jurisdiction” requirement. State and nal cases include time in jail or prison, pro-

EGAL federal prosecutions take place in different L bation, fine, restitution, or other sanctions jurisdictions; therefore, there is no double

THER authorized by law and imposed by the

O jeopardy. There is no double jeopardy either judge. Administrative sanctions include dis- if an employee is dismissed from employ- missal, demotion, transfer, reprimand, warn- ment and then prosecuted later, or held ing, or other sanctions that agency policy or civilly liable, for the same act. This is IABILITIES AND

L state law authorize. because dismissal by the agency is adminis- IVIL C

10 CHAPTER V. POSSIBLE sovereign immunity defense, which was available to them until the Monell decision DEFENDANTS IN in 1978. Therefore, counties, judicial districts, municipalities, or other nonstate units 1

CIVIL LIABILITY A

of government may be sued and held liable N O

CASES for what their employees do. OF VERVIEW

sing the “deep pockets” approach B. Individual Officers as (meaning that plaintiffs usually

U Defendants S include as defendants those who are in a AND TATE better position to satisfy a monetary judg- 1. State Officers ment against them because they have more Although state agencies are generally exempt F money), plaintiffs generally include as from liability for their governmental activi- EDERAL defendants anybody who might possibly ties unless waived, immunity ordinarily is unavailable to individual state officers who have anything to do with a case. This L might include the probation/parole officer, are sued. Therefore, members of state proba- EGAL

the supervisors, and the governmental tion/parole boards may be sued as individu- L agency that is the employer of the alleged als. The fact that a state provides counsel, or IABILITIES offending officer. The assumption is that indemnifies the officer if held liable, does probation/parole officers have a shallow not mean that the state has consented to pocket, while supervisors and agencies have be sued. It simply means that, if held liable, deep pockets. Who is responsible for which the officer pays the damages and the state amount is usually determined by state law. indemnifies or reimburses him. All officers, state or local, may therefore be sued in their A. Government Agency as individual capacity under Section 1983. Defendant 2. Officers of Nonstate Agencies In lawsuits against the agency, immunity usually attaches if the defendant is a state Officers of counties, judicial districts, munici- agency. This is because states (and the federal palities, or other nonstate governmental units government) enjoy sovereign immunity, a may be sued in their official or individual doctrine stemming from the common law capacities. As in the case of state officers, concept that “the King can do no wrong,” however, plaintiffs will likely sue officers in hence cannot be sued or held liable. Sovereign their official capacities so they can include immunity, however, may be waived through their supervisors and agencies as defendants. law or judicial decision, and many jurisdic- ■■■ tions have waived it. When sovereign immunity does exist in a state, the question arises as to whether the particular function involved VI. KINDS OF was governmental (for which there is immunity) or proprietary (for which there is no DAMAGES AWARDED immunity). This is a complex area of law IN CIVIL LIABILITY and decisions vary from state to state. CASES The rule concerning local governments is different. Local governments are subject to n general, three kinds of damages may be liability under Monell v. Department of Social Iawarded in civil liability cases, particularly Services.2 They have been deprived of the to those who file under state tort law:

11 A. Actual or Compensatory C. Punitive or Exemplary Damages Damages These damages reduce to monetary terms These damages are designed to punish or all actual injuries shown by the plaintiff. make an example of the wrongdoer, as well Consequential damages, such as medical as to deter future transgressions. Punitive bills and lost wages, are termed special dam- damages awarded can at times be quite high. ages and are included in the category of In one case, the U.S. Supreme Court held compensatory damages. that a $10 million punitive damage award did not violate due process requirements of In Byrd v. N.Y. City Transit Authority,3 a com- the 14th amendment. In making its deci- pensatory award was ultimately reduced sion, the Supreme Court noted that the from $950,000 to $250,000 for false arrest absolute or relative size of a punitive award and assault when a plaintiff suffered “minor was not the test of excessiveness but, rather, scarring” and there was insufficient evidence whether an award reflects bias, passion, or of loss of earnings. prejudice by the jury.6 Punitive damages are awarded only against willful transgressors. B. Nominal Damages However, the Supreme Court has ruled that These are an acknowledgment by the court no punitive damages may be awarded 7 that the plaintiff proved his cause of action, against local governments. usually in the amount of $1. When the plain- ■■■ tiff was wronged but suffered no actual injury, nominal damages would be appropriate. SUMMARY In one case, Brooker v. N.Y.,4 for example, a plaintiff who was arrested by state police offi- robation/parole officers may be exposed cers, was grabbed by the neck and pulled out Pto legal liabilities under federal and state of a tavern. In a claim alleging assault and law. Legal liabilities may also be classified battery, the court awarded $1 in nominal into civil and criminal. This chapter discusses

UPERVISORS damages, finding that the plaintiff suffered S the various laws and damages to which an “no injury” from the use of force and made officer may be exposed in connection with “embarrassingly phony” moans of pain only his work. These liabilities are not mutually

FFICERS AND when someone started to videotape the

O exclusive; in fact, one serious act may expose 5 events. Similarly, in Floyd v. Laws, a civil the officer to a number of civil and criminal

AROLE rights plaintiff was found to be entitled to

/P liabilities under federal and state law. In judgment and award of nominal damages of addition, the officer may be subject to $1 when a jury found her civil rights had administrative disciplinary proceedings that ROBATION P been violated but awarded no actual or puni- can result in transfer, suspension, demotion, tive damages. dismissal, or other forms of sanction. SSUES FOR I Where nominal damages vindicate the plain- The constitutional protection against double EGAL L tiff as wronged, the door to punitive damages jeopardy does not apply to the above cases is opened, with or without a compensatory THER because the cases are not all criminal in O damage award. Nominal damages also lay the nature, the criminal prosecutions discussed basis for awarding 1983 attorney fees in that here do not refer to the same act, and the they identify the prevailing party. prosecutions are by different jurisdictions. IABILITIES AND L IVIL C

12 CHAPTER Double jeopardy applies only where criminal acknowledges that the plaintiff has proved prosecutions of the same offense are made his/her cause of action, but no actual injury by the same jurisdiction. was sustained. In this case, a nominal damage award of $1 would be appropriate. A 1 A

In addition to the probation/parole officer, a third type of damages awarded in civil cases N plaintiff, using the “deep pockets” approach, O is punitive or exemplary damages. These OF VERVIEW may include as defendants anybody who had damages are awarded to punish or make an anything to do with the case. This could example of the wrongdoer as well as to deter include supervisors as well as the government transgressions by others in the future. S agency, either state or federal, which is the AND TATE employer of the probation/parole officer. Notes However, a state or federal agency normally

1. See unpublished manuscript of Charles E. F

will enjoy sovereign immunity unless waived EDERAL through law or judicial decision. If sover- Walker, Jr., General Counsel Board of Pardons eign immunity does exist in a state, it then and Paroles, Austin, Texas, “Legal Liabilities of L becomes important to determine whether the Probation and Parole Authorities.” EGAL particular function involved was governmen- 2. Monell v. Department of Social Services, L tal (for which there is immunity) or propri- IABILITIES 436 U.S. 658 (1978). etary (for which there is no immunity). 3. Byrd v. N.Y. City Transit Authority, 568 Local governments, such as counties, judicial N.Y.S.2d 628 (A.D. 1991). districts, municipalities, or other nonstate units of government, may be sued and held 4. Brooker v. New York, 614 N.Y.S.2d 640 liable for the actions of their employees (A.D. 1994). under Monell v. Department of Social Services. 5. Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991). In civil liability cases, there are essentially three kinds of damages that may be awarded. 6. TXO Production Corp. v. Alliance Resources These include actual or compensatory dam- Corp., 113 S. Ct. 2711 (1993). ages, in which damages are reduced to a monetary amount for actual injuries shown 7. City of Newport v. Fact Concerts, Inc., 435 by the plaintiff. A second type of damage U.S. 247, 101 S. Ct. 2748, 79 L. Ed. 616 award is nominal damages. Here the court (U.S.S.C. 1981).

CHAPTER 2 1. Categories of Official Immunity 1. Categories of Official Have? Officers Probation/Parole Do Immunity of Type What 2. 1. Physical Tort 1. Physical Tort 2. Nonphysical of Negligence 1. Definition Tort Negligence of 2. Elements of Negligence Types 3. Resulting From Negligent Supervision Negligent From Resulting A. Defense Immunity The Official B. Defense Immunity The Governmental A. Tort Intentional B. Tort Negligence C. in Injury Defense Cases Doctrine Duty The Public I. DEFINITION OF STATE TORT OF STATE I. DEFINITION II. KINDS OF STATE TORT II. KINDS OF STATE SUMMARY NOTES III. DEFENSES IN STATE TORT CASES TORT III. DEFENSES IN STATE INTRODUCTION Civil Liability Under State Law: State Under Liability Civil Cases Tort State CHAPTER 2 CHAPTER

CHAPTER INTRODUCTION the applicable law. The jury determination is subject to modification, either by the trial his chapter discusses two major kinds judge or on appeal. A successful tort action generally results in payment of monetary 2 of state tort cases: intentional tort and T C negligence tort. In legal terminology, the act damages to the wronged party. IVIL itself is called a tortious act, while the person L ■■■ IABILITY who commits the act is known as a tortfeasor. There is so much variation in state tort law from one state to another; hence, this discus- U II. KINDS OF STATE NDER sion is restricted to general principles. State law must be consulted for specifics. TORT S TATE

■■■ cts that constitute tort vary from one L AW

A state to another and are usually deter- : S I. DEFINITION OF mined by case law or legislative enactment. TATE

As indicated above, there are generally two T STATE TORT kinds of tort: intentional tort and negligence ORT tort. Probation/parole officers are exposed to C ASES ort is defined in Black’s Law both but, of late, more and more cases have Dictionary as:1 been filed under negligence tort. The allega- T tion in negligence tort cases is that the offi- A legal wrong committed upon the cer failed or neglected to do what he or she person or property independent of ought to have done, resulting in injury to contract. It may be either (1) a direct the plaintiff, usually a member of the public. invasion of some legal right of the individual; (2) the infraction of some pub- A. Intentional Tort lic duty by which special damage accrues Black’s Law Dictionary defines intentional to the individual; (3) the violation of tort as “a tort in which the actor is expressly some private obligation by which like or impliedly judged to have possessed intent damage accrues to the individual. or purpose to injure.”2 To win an intentional tort case, the plaintiff must prove The same act can be a crime against the state the following: and a tort against an individual; thus, both a criminal prosecution and a civil tort action ■ An act by the defendant; may arise from the same act. For example, a person who drives while intoxicated and ■ The act must be deliberate and purposeful causes an accident resulting in injury to or the defendant knew with substantial another driver and damage to his or her car certainty that consequences could result may be guilty of the criminal offense of from the act; driving while intoxicated, and civilly liable ■ The result must have been caused by the for the injury inflicted on the other person act; and and the damage to the car. Tortious acts may ■ also be the basis for suits charging viola- Damages resulted from the act. tion of civil rights under Section 1983 (federal cases), as discussed in Chapter 3. Example: A probation officer beats up a juvenile probationer for no reason whatsoever, as Tort actions are usually tried in state court a result of which the juvenile suffers injury. before a jury that makes determination of The officer may be held liable under inten- liability and the amount of damages to be tional tort because the act was committed by 17 paid under instructions from the judge as to the defendant (the officer), the act was delib- such as pushing, spitting in the face, erate and purposeful, the injury was caused forcibly removing a person’s hat, or any by the act, and damages (the injury) resulted touching of someone in anger. The con- from the act. sent of the plaintiff to the contact is a defense.3 Intentional tort may be subdivided into two ■ Assault, on the other hand, is an intention- categories: physical tort and nonphysical tort. al act on the part of an individual that might not involve any contact, but that 1. Physical Tort places a person in reasonable apprehension An illustrative—not exhaustive—list of acts of immediate touching. Assault is thus a that constitute physical tort is presented mental invasion, rather than the physical below. invasion involved in battery (although in many cases both assault and battery are a. Battery. Intentional harmful or offensive involved). Examples of assault include touching. shaking a fist in someone’s face, raising a b. Assault. Intentionally placing a person in weapon, or chasing someone in a hostile reasonable apprehension of immediate manner. Threatening words alone are usu- touching. ally not sufficient, although they may contribute to an assault. Note that the trend c. Intentional infliction of emotional distress. among the states is to combine assault and Acts of an officer that caused emotional battery as a single, combined offense.4 distress. ■ False arrest and false imprisonment are d. False arrest. Arresting a person illegally in two other tortious actions for which pro- the absence of a warrant. bation/parole officers may be liable. False e. False imprisonment. Illegally detaining a arrest takes place when a person is illegally person after arrest. arrested in the absence of a warrant. This f. Wrongful death. Death caused by the occurs, usually, when the arresting officer wrongful act of another. lacks probable cause to believe that a UPERVISORS

S crime was committed and that the person Some torts, such as assault and battery, involve arrested committed the act. False impris- injury to the person; others, such as trespass, onment takes place when, after arrest, a FFICERS AND

O represent a wrong to a person’s property. These person is illegally detained. The deten- torts are intentional, which means that they tion does not have to be in a prison or AROLE

/P are based on the intent of the actor to do the jail. It can take place in such facilities as act which caused a certain event or harm. a halfway house, juvenile home, mental facility, hospital, or even a private home. ROBATION Other intentional torts include false arrest or P false imprisonment, conversion, invasion of Physical force need not be used under privacy, infliction of mental distress, libel, false imprisonment. Present, immediate SSUES FOR I slander, misrepresentation, wrongful death, threats are sufficient; future ones are not. A probation/parole officer need not actu- EGAL and malicious prosecution. Elements of some L of these physical torts include the following: ally use force to detain a probation/parolee

THER illegally. Although false imprisonment O ■ Battery is the intentional infliction by an usually follows false arrest, false imprison- individual of a harmful or offensive touch- ment may take place even after a valid ing. The defendant in a case of battery is arrest. An example is if a probation officer IABILITIES AND L liable not only for contacts that do actual makes a valid arrest but refuses to release

IVIL the probationer after having been ordered C physical harm, but also for relatively trivial ones that are merely offensive or insulting, to do so by the judge.5 18 CHAPTER ■ Wrongful death lawsuit is brought by such fering with an individual’s solitude or per- persons as surviving relatives or the executor sonality. Each, in its own way, is an unrea- of the deceased’s estate. This tort provides sonable interference with a person’s right damages to those hurt by the death when to be left alone. The areas of concern 2 C

it was wrongfully caused by the actions include (1) intrusion of the plaintiff’s pri- IVIL of another. No recovery is possible if the vate affairs or seclusion, (2) publication of L deceased could not have won a suit in his facts placing the plaintiff in a false light, IABILITY or her own right had that party survived. and (3) public disclosure of private facts

about the plaintiff. The act of invasion U

2. Nonphysical Tort NDER may be mere words, such as the unautho- An illustrative list of acts that constitute rized communication of some incident S nonphysical tort is presented below. of a person’s private life, or it may be an TATE

overt act, such as wiretapping, “peeping,” L AW a. Defamation. An invasion of a person’s 7

or taking unauthorized photographs. : S

interest in his or her reputation. TATE ■ Infliction of emotional distress refers to b. Invasion of privacy. An umbrella concept acts (either intentional or negligent) that T ORT covering unreasonable interference with cause emotional distress to the plaintiff.

an individual’s right to be left alone. C

Words alone or gestures or conduct may ASES c. Misrepresentation of facts. False representa- be sufficient. Bullying tactics by probation of a past or present fact, on which tion/parole officers or insults shouted in individuals may justifiably and actually public might be examples, especially if rely in making decisions. they can be deemed “extreme” and “outrageous.” In some states, the emotional d. Malicious prosecution. The initiation of distress must be severe enough to have criminal proceedings without reasonable resulted in demonstrable physical injuries. cause or for improper reasons, such as In other states, however, the outrageous revenge. nature of the defendant’s conduct is a suf- e. Wrongful death. When death results from ficient basis for liability.8 the wrongful act of another person. ■ Misrepresentation of facts requires a false representation of a past or present fact, on Harm to an individual’s nonphysical inter- which individuals may justifiably and do ests, such as his or her reputation, privacy, actually rely in making decisions. By the and emotional well-being, is also tortious. nature of their work, probation/parole officers are susceptible to this. A related ■ Defamation refers to invasion of a person’s tort is disparagement or injurious false- interest in his or her reputation. In order hoods. These falsehoods are statements for defamation to take place, material harmful to a person, but that do not nec- about an individual must be communicat- essarily hurt his or her reputation. False ed, either orally (slander) or in written statements such as “A is no longer in busi- form (libel), to at least one third person ness,” or the filing of a false change of who understood it.6 The material must address card with the post office, are tend to lower the reputation of the person examples.9 to whom it refers, in the estimation of at least a substantial minority of a communi- ■ Malicious prosecution involves the initia- ty. Proof of the statement’s truth is an tion of criminal proceedings, as in a report absolute defense regardless of how damag- to the police or other official that results ing it may be. in a warrant for the plaintiff’s arrest. The accusation must be without probable ■ Invasion of privacy is an umbrella concept cause and for an improper reason, such embracing several distinct means of inter- 19 as revenge. In order for the defendant to One phrase is mentioned three times in the be liable for malicious prosecution, the above definition: a reasonably prudent per- plaintiff against whom proceedings were son. The definition of negligence relies a lot initiated must be found innocent.10 on what a reasonably prudent person would or would not have done under similar cir- B. Negligence Tort cumstances. For purposes of day-to-day decisionmaking, probation/parole officers Negligence tort is filed with increasing fre- are best advised to do what a reasonably quency by plaintiffs who are injured by prudent person would have done under crimes that probationers/parolees commit the circumstances. Note, however, that the while on probation/parole supervision. It is above definition may be superseded by a based on the assumption by the public, and definition given by state statute or state case made official policy in some departments, law. A definition that is found in a state that one of the purposes of probation/parole statute or state case law prevails over the is public protection. Example: X, a member above definition. of the public, is raped by a parolee. X brings a lawsuit against the parole officer and the 2. Elements of Negligence Tort department alleging negligence in their duty In general, the following must be present to protect the public. Whether the lawsuit if the defendant is to be held liable under succeeds or not is an entirely different story; negligence tort law:12 the likelihood is it will not. The point, however, is that a lawsuit for negligent supervi- ■ A legal duty owed to the plaintiff; sion may be brought against the officer, the supervisor, and the department for crimes ■ A breach of that duty by omission or committed by probationers/parolees. Not commission; all types of negligence in supervision lead ■ The plaintiff must have suffered an injury to liability. An important question for pro- as a result of that breach; and bation/parole officers is: When are they negligent in their jobs as to be exposed ■ The defendant’s act must have been the

UPERVISORS proximate cause of the injury.

S to negligence lawsuits? The answer is: It depends on the legal definition of negligence and available defenses in their jurisdiction. 3. Types of Negligence FFICERS AND

O Negligence may be slight, gross, or willful. 1. Definition of Negligence Slight negligence is defined as “an absence of AROLE

/P One court offers this widely accepted defini- that degree of care and vigilance which per- tion of negligence:11 sons of extraordinary prudence and foresight are accustomed to use”—in other words, ROBATION P Negligence, in the absence of statute, “a failure to exercise great care.” Gross negli- is defined as the doing of that thing gence is described as “a failure to exercise SSUES FOR

I which a reasonably prudent person even that care which a careless person would would not have done, or the failure to use,” while willful negligence means that EGAL L do that thing which a reasonably pru- “the actor has intentionally done an act of

THER dent person would have done in like an unreasonable character in disregard of a O or similar circumstances; it is the fail- risk known to him or so obvious that he ure to exercise that degree of care and must be taken to have been aware of it, or prudence that reasonably prudent per- so great as to make it highly probable that IABILITIES AND L sons would have exercised . . . in like harm would follow.”13

IVIL or similar circumstances. C In general, no liability ensues if the negli- 20 gence is slight; liability ensues only if the CHAPTER negligence is gross or willful. The problem, carry out governmental operations must also however, is that it is sometimes hard to be immune.14 Another argument advanced determine which specific negligence is slight, is that it would be unfair and intimidating gross, or willful. Despite definitions, these to allow a private individual to hold a gov- 2 C terms are subjective with the trier or fact in ernment officer or employee liable for per- IVIL specific cases. What may appear slight to forming his or her duty. For example, if a L one judge or jury may be gross to other prosecutor could be subjected to a possible IABILITY individuals. The good news, then, is that tort lawsuit every time a prosecution failed,

there is no liability for slight negligence he or she might well decide to prosecute U (with some exceptions, as in strict liability with less vigor and only when absolutely cer- NDER cases); the bad news is that there is no defi- tain the case will result in a conviction. The S nite guideline to determine what is slight fear of tort liability could have a chilling TATE

or gross. effect on job performance. L AW : S

■■■ The meaning of and requirements for the TATE official immunity defense vary from state to T III. DEFENSES IN state. One state court lists the requirements ORT

that must be present in many states for the C STATE TORT CASES defense to succeed, holding that government ASES employees are entitled to official immunity any defenses are available in state tort from lawsuits arising from the performance M cases, including consent, self-defense, of their “discretionary duties, in good faith, defense of others, and defense of property. as long as they are acting within the scope of 15 Just about each type of tort case has its own their authority.” This definition requires particular defense. For example, the defense that for the official immunity defense to for the tort of assault and battery differs succeed, the following must be proved by from the defense against the tort of defama- the probation/parole officer: (1) the officer tion; the defense for intentional tort differs must have been performing a discretionary, from the defense for negligence tort. not mandatory, act; (2) the officer must have acted in good faith; and (3) the officer must Nonetheless, types of defenses are discussed have acted within the scope of his or her here because they apply only to government authority. What do these terms mean? officials or entities, not to private persons. These are the official immunity defense ■ Discretionary means that the act involves (applies to government officials), the govern- personal deliberation, decision, and judg- mental immunity defense (applies to government. Actions that require obedience to mental agencies), and the public duty orders or performance of duty to which doctrine defense (applies to public officials the officer has no choice are not discre- 16 in injury cases as a result of alleged supervi- tionary; they are, instead, ministerial. sion negligence). Example: To revoke or not to revoke a probationer for a minor offense is usually A. The Official Immunity left to the discretion of the officer, unless revocation is required by agency policy— Defense which it seldom is. On the other hand, Official immunity from liability applies to respecting the constitutional rights of a public officials. The historical justification probationer, at least those not lost as a for official immunity is that since a govern- result of being placed on probation, is ment can only act through its officials and ministerial in that the officer had no since sovereign immunity is to protect the option to disregard those rights. operations of government, then those who 21 ■ Good faith means that the officer “acted somewhat more formally, legislators and in the honest belief that the action taken judges can be impeached in appropriate or the decision was appropriate under the cases; and all legislators and many judges circumstances.”17 Example: A probation are subject to citizen censure at the polls. officer denies permission for a probationer They are simply protected from personal to travel, based on the reasonable belief financial liability. It must be noted that that there is a strong possibility the proba- judges do not enjoy absolute immunity in tioner will not return. everything they do. They have absolute immunity only when performing judicial ■ Acting within the scope of authority or adjudicatory responsibilities, such as means that the officer is discharging the issuing setting conditions of probation or duties generally assigned.18 Example: An revoking a probationer. They do not have officer making a home contact is acting absolute immunity when performing within the scope of authority. In contrast, nonjudicial functions, such as when serv- an officer who revokes a probationer with- ing as a member of a juvenile probation out justification is clearly acting outside board or when hiring or firing probation the scope of authority. officers.

1. Categories of Official Immunity b. Quasi-judicial immunity. Absolute immunity is generally applied to officials in the Official immunity may be divided into three judicial and legislative branches of govern- categories: absolute, qualified, and quasi- ment, while qualified immunity applies to judicial. Each is briefly discussed below. those in the executive branch. Some offi- a. Absolute immunity. The need to encourage cials, however, have both judicial and fearless decisionmaking has led to recog- executive functions. Such officials include nition of an absolute immunity for some court personnel, parole board members, officials. This privilege protects the offi- and some probation officers. These official from liability for official acts even if cials are given some protection, referred to they were done with malice, and allows as “quasi-judicial immunity.” Under this

UPERVISORS type of immunity, judicial-type functions S the courts to dismiss actions for damages immediately without going into the mer- that involve discretionary decisionmaking its of the plaintiff’s claim.19 Federal and or court functions are immune from lia-

FFICERS AND state legislators, judges, and prosecutors bility, while some other functions (such O 21 have this type of immunity. (Indeed, it is as ministerial duties of the job) are not.

AROLE often referred to as “judicial immunity.”) The emphasis is on the function per- /P Although they could be sued in actions formed rather than on the position the alleging their decisions were based on officer holds. In other words, there are ROBATION P malicious grounds, such cases will be dis- nonjudicial officials who enjoy the same missed by the courts. These officials are immunity as judges when performing certain responsibilities that are analogous to SSUES FOR

I thus protected from liability. Courts at both the federal and state levels have those performed by judges. EGAL L consistently upheld absolute immunity c. Qualified immunity. The courts have been

THER for legislators and judges, based on the less willing to find absolute immunity O rationale that these officials must be free for other public employees who are not from the fear of liability to exercise their involved in the legislative or judicial discretion appropriately.20 This does not process. These officials are usually from IABILITIES AND

L mean that absolutely immune officials the executive department of government.

IVIL are not accountable for their decisions. C The doctrine of qualified immunity has two Legislative and judicial ethics bodies may different formulations. According to one, 22 inquire into and punish misconduct; CHAPTER the immunity defense is held to apply to an they work and the nature of the functions official’s discretionary acts, meaning those performed, but in general they merely have that require personal deliberation and judg- qualified immunity. Probation officers who ment. The immunity defense is not avail- are employees of the court and work under 2 C able, however, for ministerial acts, meaning court supervision do not enjoy the same IVIL those that amount only to the performance absolute immunity of judges, but they may L of a duty in which the officer is left with no be vested with judicial immunity for some IABILITY significant choice of his or her own.22 For acts. For example, in a recent federal case,

example, a parole hearing officer’s recom- the Fifth Circuit Court of Appeals held that U mendation to revoke or not to revoke parole a probation officer was entitled to judicial NDER is a discretionary act, but the duty to give immunity when preparing and submitting S the parolee a hearing before revocation is a presentence report in a criminal case and TATE

ministerial because a hearing is required by was not subject to liability for monetary L AW 24

the Constitution, as decided by the United damages. Another case, decided by the : S

States Supreme Court. Ninth Circuit Court of Appeals in 1970, TATE held that in preparing and submitting a pre- T A major difficulty with the discretionary- sentence report on the defendant, the proba- ORT

ministerial distinction is that there is no tion officer was performing a “quasi-judicial” C adequate way of separating discretionary function and was therefore immune from ASES from ministerial duties. The distinction liability under Section 1983.25 seems to vary from judge to judge and from jurisdiction to jurisdiction and is thus Many of the actions of such court-supervised difficult to predict. It is clear, however, that probation officers, however, are considered officials in policymaking positions (such as executive, and hence are likely to come probation/parole board members) at the under qualified immunity. Probation officers planning level of government are more likely are liable unless the act is discretionary or to be making discretionary decisions and done in good faith. Parole officers are usual- are thus better able to claim the immunity ly employees of the executive department of defense for their actions. Field officers and the state and, as such, they enjoy only quali- others at government’s operational level fied immunity. They do not enjoy any type usually perform ministerial acts and, thereof judicial immunity that some courts say fore, are advised to consider their functions probation officers have when performing as ministerial and not immune, unless oth- certain court-ordered functions. erwise previously decided by a court in closely similar circumstances. Most federal courts of appeals have ruled that higher officials of the executive branch A second and better known way of inter- who must make judgelike decisions are per- preting qualified immunity, used in some forming a judicial function that deserves states, is by relating it to the “good faith” absolute immunity. This particularly refers defense. Under this concept, a public officer to parole boards when performing such (other than one who enjoys absolute immu- functions as considering applications for nity) is exempt from liability only if he or parole, recommending that a parole date be she can demonstrate that the actions were rescinded, or conducting a parole revocation reasonable and were performed in good faith hearing.26 One federal appellate court, how- within the scope of employment.23 ever, has stated that probation and parole board members and officers enjoy absolute 2. What Type of Immunity Do immunity when engaged in adjudicatory Probation/Parole Officers Have? duties but only qualified, good faith immu- Immunity for probation/parole officers is nity for administrative acts. The same court often dependent on the agencies for which categorized the failure to provide procedural 23 due process in a revocation hearing as minis- makes the assumption of this wholly terial in nature, for which liability attached.27 new liability quite tolerable.

B. The Governmental Immunity No state, however, has gone so far as to Defense totally relinquish immunity for all injuries caused through the misadministration of the This type of immunity protects the govern- governmental process. ment (instead of individuals) from liability. It derives from the early English concept of State immunity, subject to waiver by legisla- “sovereign immunity,” which proclaims that tion or judicial decree, is an operational “the King could do no wrong,” and, there- doctrine for states and their agencies. A dis- fore, he could not be subjected to suits in tinction must be made, however, between his own courts.28 Sovereign immunity was agency liability and individual liability. State adopted in the United States at an early date immunity only extends to state agencies. through court cases and memorialized in the It does not necessarily extend to individual 11th amendment to the Constitution.29 state officers who can be sued and held personally liable for civil rights violations or Initially, the doctrine was held by the court tortious acts. Therefore, in states where to bar suits against the federal and state gov- sovereign immunity has not been waived, ernments, based on the premise that the gov- state officials may still be sued and held ernment had authority to protect itself from liable because they do not partake of gov- liability suits. The right to sue for damages ernmental immunity. For example, a state was created by the government, and the gov- cannot be sued (unless sovereign immunity ernment, as the creator, could exempt itself is waived), but the chairman and members from the enforcement of that right. Various of the State Parole Board can be sued and justifications for exempting the government held liable. Whether the state will provide from liability were advanced, involving con- legal representation and indemnification, siderations of finance and administrative if held liable, varies from state to state. feasibility.30

UPERVISORS Prior to the 1978, municipal governments, S Neither the federal government nor any counties, and villages could not be sued state fully retains its sovereign immunity. because they were considered extensions of Legislatures in every jurisdiction have been FFICERS AND state power and hence enjoyed sovereign O under pressure to compensate victims of immunity. All that changed in 1978 when governmental wrongs, and all have adopted AROLE the United States Supreme Court held in /P some form of legislation waiving immunity Monell v. Department of Social Services32 in at least some areas of governmental activity. that local units of government may be 31 ROBATION

P As noted by one scholar: held liable, in a Section 1983 action, if the allegedly unconstitutional action was taken The urgent fiscal necessities that made by the officer as a part of an official policy SSUES FOR I the governmental immunity acceptable or custom.

EGAL at the outset are no longer present. L The United States and a growing num- As is evident from the above discussion, the THER O ber of states have found it financially immunity defense is complex, confusing, feasible for them to accept liability for and far from settled, particularly in the case and consent to suit upon claims of of probation/parole officers. Variations are negligence and omission, for which IABILITIES AND found from state to state and from one juris- L they traditionally bore no liability at diction to another. The above discussion IVIL C all; the availability of public liability is designed merely to provide a general insurance as well as self-insurance 24 CHAPTER framework and guideline. (Table 2–1 pres- probation/parole is public protection. ents what courts in most jurisdictions have Injured members of the public file lawsuits said. It is not meant to be a definitive state- against probation/parole officers and department on the issue of immunity. Readers ments because they link the injury caused by 2 C should consult their legal advisors for the probationers or parolees to negligent super- IVIL law and court decisions in their states.) vision or failure to revoke probation or L parole. The public assumes that, had the IABILITY C. The Public Duty Doctrine offender been properly supervised and had

Defense in Injury Cases Resulting the probation/parole been revoked upon U NDER From Negligent Supervision violation of conditions, the injury could have been prevented. S

The general rule is that there is no liability TATE on the part of probation/parole officers for

Logical as this thinking may be, it generally L failing to protect a member of the public has no basis in law. The reality is that, were AW who suffers injury inflicted by a probation- : S it not for the protection against civil liability TATE er/parolee. This protection from liability given by the public duty doctrine, nobody T stems from the “public duty doctrine,” would ever want to be a police, probation, ORT which holds that government functions are

or parole officer. These are high-risk occupa- C owed to the general public but not to specific tions that profess public protection as a part ASES individuals.33 Therefore, probation/parole of their mission, yet they hardly have any officers who fail to prevent an injury to a control over what the public or their super- member of the public are not liable for visees do vis-à-vis the public; therefore, they the injury inflicted. One of the goals of are protected against civil liability.

Table 2–1. General Guide to Types of Official Immunity in State Tort Lawsuits Absolute* Quasi-judicial† Qualified§ Judges Yes Legislators Yes Prosecutors Yes Parole Board Members Yes, if performing a Yes, if performing judgelike function other functions Supervisors Yes Probation Officers Yes, if preparing a Yes, if performing presentence report other functions under order of judge Parole Officers Yes Police Officers Yes Prison Guards Yes State Agencies Yes, unless waived by law or court decision Local Agencies No immunity No immunity No immunity * Absolute immunity means that a civil liability suit, if brought, is dismissed by the court without going into the merits of the plaintiff’s claim. No liability.

† Quasi-judicial immunity means that officers are immune if they are performing judicial-type functions, such as when preparing a presentence report under orders of the judge, and liable if they are performing other functions.

§ Qualified immunity means that the officer’s act is immune from liability if it is discretionary, but not if it is ministerial. Also, an officer may not be liable even if the act is ministerial if it was done in good faith. 25 The Exception: Liability May Be Imposed negligently failed to do so. Example: A If a Special Relationship Exists parole officer has credible information There is one major but multifaceted and that a parolee is planning to commit a largely undefined exception to the public crime and could have prevented it, but duty doctrine. This is the special relation- failed to do so; and ship exception. The term means that if a ■ When the probation/parole officer fails duty is owed to a particular person rather to follow a specific order of the court. than to the general public, then a proba- Example: A judge orders a probation offi- tion/parole officer or agency that breaches cer not to allow a probationer to have that duty can be held liable for damages. access to his estranged wife and the officer Special relationship has many meanings could have done that but failed to do so. depending on state law, court decisions, 34 or agency regulations. The problem with the special relationship exception is that it is difficult to determine In cases involving the police and law under what specific circumstances a special enforcement officers, courts might find lia- relationship exists. There are no definite bility to injured individuals in the following guidelines. Special relationship cases in polic- instances based on special relationship: ing appear to indicate that courts or juries first impose liability in particularly bad cases to ■ When the police deprive an individual of liberty by taking him or her into custody.35 compensate an injured member of the public, then fall back on the special relationship ■ When the police assume an obligation exception to justify the award. The thinking that goes beyond police duty to protect seems to be that the victim has suffered the general public.36 because of what the probationer/parolee has ■ When protection is mandated by law.37 done and should be compensated either by the state or by those in charge of supervision. ■ When protection is ordered by the court.38

■ In some domestic abuse cases.39 The public duty doctrine and the special

UPERVISORS relationship exception are discussed more S What the above situations above have in fully in Chapter 8, Supervision. common is that the duty of the police has ■■■ FFICERS AND shifted from that of protecting the public O in general to protecting a particular person

AROLE or persons; hence a special relationship is

/P SUMMARY deemed to have been established. robation and parole officers may be held ROBATION

P There are instances when the special rela- liable under state tort law. There are two tionship exception might apply to proba- P kinds of state tort: intentional tort and negli- tion/parole officers. This is particularly likely SSUES FOR

I gence tort. Intentional tort has two subcate- when they are vested with law enforcement gories: physical tort and nonphysical tort. EGAL

L authority, as they are in some jurisdictions. Negligence tort has assumed greater impor- Realistically, however, liability based on spe- THER tance for probation/parole officers because O cial relationship in probation/parole might of the increasing number of cases filed by arise in the following cases: the public. This happens when a member of

■ the public is injured by a probationer/parolee IABILITIES AND When a probation/parole officer has credi- L and that person feels the injury could have ble knowledge that a crime is about to be IVIL

C been prevented had the officer properly committed by a probationer/parolee and supervised the probationer/parolee. the officer could have prevented it, but 26 Intentional tort is a tort of commission, CHAPTER whereas negligence tort is generally a tort of 8. Id. at 89. omission, meaning the officer failed to do something that ought to have been done. 9. Id. at 97-98. 2 10. Id. at 101. C

Three defenses to state tort are discussed in IVIL this chapter: the official immunity defense L (applies to government officials); the govern- 11. See Biddle v. Mazzocco, 248 P.2d 364 IABILITY mental immunity defense (applies to govern- (1955).

ment agencies); and the public duty doctrine U

12. Supra note 3, at 143. NDER defense (applies to public officials in injury cases as a result or alleged supervision negli- 13. Supra note 3, at 183-85. S gence). Official immunity may be divided TATE into three categories: absolute, qualified, and 14. Committee on the Office of Attorney L quasi-judicial. Judges and prosecutors enjoy AW General, National Association of Attorneys : S absolute immunity while performing judicial General, Official Liability: Immunity Under TATE responsibilities; probation/parole officers

Section 1983, at 7 (July 1979). T have qualified immunity. Governmental ORT

immunity means that the government can- 15. City of Lancaster v. Chambers, 883 S.W.2d C not be sued because of sovereign immunity, (Texas 1994). ASES unless such immunity is waived by legislation or case law. Local agencies, however, do not 16. City of Pharr v. Ruiz, 944 S.W.2d 709 enjoy sovereign immunity; hence, they can (Tx. Cr. App. Corpus Christi, 1997). be sued and held liable. The public duty doctrine holds that government functions are 17. Id. owed to the general public but not to specific individuals. Therefore, probation/parole offi- 18. Supra note 14. cers who fail to prevent an injury to a mem- 19. Texas Advisory Commission on ber of the public are not liable, unless it falls Intergovernmental Relations, Personal Tort under the special relationship exception. Liability of Texas Public Employees and Officials: Special relationship, however, is an ill-defined A Legal Guide, at 12 (1979). concept and tends to be applied on a case- by-case basis. 20. Supra note 13, at 7.

Notes 21. Supra note 13, at 47. 1. Black’s Law Dictionary, sixth edition (1991), 22. Supra note 13, at 8. at 1036.

23. Supra note 13, at 69. 2. Id. at 560.

24. Spaulding v. Nielsen, 599 F.2d 728 3. W. Prosser, Handbook of the Law of Torts, at 10 (5th Cir. 1979). (4th ed. 1971).

25. Burkes v. Callion, 433 F.2d 318 (9th Cir. 4. Id. at 41. 1970), cert. denied, 403 U.S. 908 (1970). 5. Id. at 47. 26. Keeton v. Procunier, 468 F.2d 810 (9th Cir. 6. Bay Area Review Course, Torts (Los Angeles, 1972), cert. denied, 411 U.S. 987 (1973); Pope Ca., Bay Area Review Course, Inc., 1972), at 76. v. Chew, 521 F.2d 400 (4th Cir. 1975); Douglas v. Muncy, 570 F.2d 499 (4th Cir. 1978). For a 7. Id. at 87. more detailed discussion of cases on the issue of 27 immunity in the performance of quasi-judicial 34. For cases on the special relationship excep- functions, see supra note 18, at 47 et seq. tion to the public duty doctrine, see I. Silver, Police Civil Liability (Matthew Bender), 1991, 27. Thompson v. Burke, 556 F.2d 231 Sec. 9.07 ff. (3d Cir. 1977). 35. See Sanders v. City of Belle Glade, 510 So. 28. Supra note 13, at 1. 2d (Fla. App. 1987).

29. Id. at 2. 36. See Schuster v. City of New York, 154 N.E.2d 534 (N.Y. 1958). 30. Id. at 5. 37. See Irwin v. Town of Ware, 467 N.E.2d 1292 31. D. Engdahl, Immunity and Accountability for (Mass. 1984). Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1, at 60 (1972). 38. See Sorichetti v. City of New York, 482 N.E.2d 70 (1985). 32. Monell v. Department of Social Services, 436 U.S. 658 (1978). 39. This happens in cases when a state passes legislation authorizing courts to issue protective 33. For a classic formulation of the public duty orders to spouses in domestic abuse situations doctrine, see Ryan v. State, 656 P.2d 616 (1982). and the police fail to enforce the order. UPERVISORS S FFICERS AND O AROLE /P ROBATION P SSUES FOR I EGAL L THER O IABILITIES AND L IVIL C

28 CHAPTER 3 Civil Liability Under Federal Law: Section 1983 Cases

INTRODUCTION

I. SECTION 1983 CASES

A. The Law B. History of the Law C. Why Section 1983 Lawsuits Are Popular D. Roadblocks to Criminal Cases Against a Public Officer

II. TWO REQUIREMENTS FOR A SECTION 1983 LAWSUIT TO SUCCEED

A. The Defendant Acted Under Color of Law B. The Violation Must Be of a Constitutional Right or of a Right Given by Federal (but Not by State) Law

III. OTHER LEGAL CONSIDERATIONS

A. The Violation Must Reach Constitutional Level B. The Defendant Must Be a Natural Person or a Local Government, but Not a State

IV. DEFENSES IN SECTION 1983 LAWSUITS

A. The Good Faith Defense as Defined in Harlow v. Fitzgerald B. The Probable Cause Defense, but Only in Fourth

Amendment Cases 3 CHAPTER

V. SECTION 1983 AND STATE TORT CASES COMPARED

SUMMARY

NOTES

CHAPTER INTRODUCTION shall be considered to be a statute of the District of Columbia. ection 1983 of Title 42, United States 3 Code, is perhaps the most frequently B. History of the Law S C used provision in the array of legal liability Section 1983 dates from the post-Civil War IVIL statutes against public officials, including L

Reconstruction Era when Congress saw a IABILITY probation and parole officers. It is therefore need for civil means to redress civil rights important that this law be properly under- violations. It was not feasible at that time to stood by probation and parole officers. This U enact a federal criminal statute. In 1871, the NDER chapter discusses Section 1983 cases, some- federal Congress passed Section 1983, then times also called civil rights cases. These 1 F popularly known as the Ku Klux Klan Act. EDERAL cases are usually filed in federal courts and It was designed to enforce the provisions of the plaintiff, as in state tort cases, seeks dam- the 14th amendment against discrimination L ages and/or changes in agency policy or and to minimize racial abuses by state offi- AW practice. cials. Its immediate aim was to provide pro- : S ECTION tection to those wronged through the misuse ■■■ of power possessed by virtue of state law and 1983 C made possible only because the wrongdoer was clothed with the authority of state law.

I. SECTION 1983 ASES As originally interpreted, however, the law CASES did not apply to civil rights violations where the officer’s conduct was such that it could A. The Law not have been authorized by the agency; hence, it was seldom used. That picture Title 42, United States Code, Section changed in 1961 when Monroe v. Pape was 1983—Civil action for deprivation of decided. rights, reads as follows: In Monroe v. Pape,2 the United States Every person who, under color of any Supreme Court ruled that Section 1983 statute, ordinance, regulation, custom, applied to all violations of constitutional or usage, of any State or Territory or rights even when the public officer was act- the District of Columbia, subjects, or ing outside the scope of employment. This causes to be subjected, any citizen of the greatly expanded the scope of protected United States or other person within rights and gave impetus to a virtual ava- the jurisdiction thereof to the depriva- lanche of cases filed in federal courts based tion of any rights, privileges, or immu- on a variety of alleged constitutional rights nities secured by the Constitution and violations, whether the officer was acting laws, shall be liable to the party injured within or outside the scope of duty. in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought C. Why Section 1983 Lawsuits against a judicial officer for an act or Are Popular omission taken in such officer’s judicial Civil rights suits are often used by plaintiffs capacity, injunctive relief shall not be for a variety of reasons. First, they almost granted unless a declaratory decree always seek damage from the defendant, was violated or declaratory relief was meaning that if the plaintiff wins, somebody unavailable. For the purposes of this pays. This can be very intimidating to a pro- section, any Act of Congress applicable bation/parole officer who may not have the exclusively to the District of Columbia personal resources or the insurance to cover 31 liabilities. Second, civil rights suits can be grand jury for indictment. Grand juries may filed as a class action suit where several not be inclined to charge public officers with plaintiffs alleging similar violations are criminal offenses unless it is shown clearly that grouped together and their cases are heard the act was gross and blatant abuse of discre- collectively. This presents the appearance of tion. In many criminal cases involving alleged strength and unity and affords plaintiffs violation of rights, the evidence may come mutual moral support. Third, if a civil rights down to the word of the complainant against suit succeeds, its effect is generic rather than the word of a public officer. The grand jury specific. For example, if a civil rights suit may be more inclined to believe the proba- succeeds in declaring unconstitutional the tion/parole officer’s testimony. Finally, the practice of giving parolees only one hearing degree of certainty needed to succeed in civil before revocation instead of a preliminary cases is mere preponderance of evidence and final hearing as indicated in Morrissey (roughly, more than 50 percent certainty), v. Brewer,3 the ruling benefits all parolees much lower than the guilt beyond a reasonable instead of just the plaintiff. Fourth, civil (95 percent or more certainty of guilt) stan- rights cases are usually filed directly in feder- dard needed to convict criminal defendants. al courts where procedures for obtaining materials from the defendant (called “discov- ■■■ ery”) are often more liberal than in state courts. This facilitates access to important II. TWO state documents and records needed for trial. A fifth and perhaps most important REQUIREMENTS reason is that since 1976, under federal law, a prevailing plaintiff may recover attorney’s FOR A SECTION fees. Consequently, lawyers have become 1983 LAWSUIT TO more inclined to file Section 1983 cases if they see any semblance of merit in the suit. SUCCEED

D. Roadblocks to Criminal Cases here are two requirements for a 1983 UPERVISORS S Against a Public Officer T lawsuit to succeed in court:

Plaintiffs use Section 1983 suits extensively ■ The defendant acted under “color of law”;

FFICERS AND despite the availability of criminal sanctions and O against the public officer. One reason is that ■ The defendant violated a constitutional AROLE the two are not mutually exclusive. A case /P right or a right given by federal (but not filed under Section 1983 is a civil case in by state) law. which the plaintiff seeks vindication of ROBATION

P rights. The vindication that an injured party feels if a criminal case is brought because of A. The Defendant Acted Under injury is less direct. Moreover, there are defi- SSUES FOR Color of Law I nite barriers to the use of criminal sanctions This means the misuse of power possessed EGAL L against erring probation/parole officers. by virtue of law and made possible only

THER Among these are the unwillingness of some because the public official is clothed with O district attorneys to file cases against public the authority of law.4 (Note: Some writers officers with whom they work and whose prefer to use the term “color of state law.” help they may sometimes need. An exception While this is the more accurate term, it can IABILITIES AND L might be where the injury was serious or if be misleading because Section 1983 also

IVIL the case has generated massive adverse pub-

C applies to federal officers and officers on the licity. Another roadblock is that serious crim- county, municipality, or lower government 32 inal cases in most states must be referred to a level. To avoid confusion, this writer feels it CHAPTER is better to use the term “acting under color Section 1983 if he or she assists state officers of law,” such term referring to law on all who act under color of law.7 levels—federal, state, county, municipal, or smaller governmental units.) In 1997, the United States Supreme Court 3 C

held that prison guards working for privately IVIL While it is easy to identify acts that are run state prisons may be held liable in Section L wholly within the term “color of law” (as 1983 cases.8 This means that private individu- IABILITY when a probation officer conducts a presen- als who are under contract with or performing

tence investigation upon court order), there public functions for probation/parole agencies U are gray areas that defy easy categorization will likely be held suable under Section 1983 NDER (as when a probation officer who moon- because they are considered “acting under F lights as a private security guard illegally color of law.” EDERAL arrests a person known by that individual to be a probationer). As a general rule, any- L

B. The Violation Must Be of AW thing a probation/parole officer does in the a Constitutional Right or of a : S performance of regular duties and during Right Given by Federal (but ECTION the usual hours is considered under color of Not State) Law state law. Conversely, what he or she does as 1983 C a private citizen during his or her off-hours Under this requisite, the right violated must be one that is guaranteed by the United

falls outside the color of state law. In gener- ASES al, an officer acts under color of law if the States Constitution or is given the plaintiff officer takes advantage of his or her authority by federal law. Rights given only by state to do what he or she did. Example: A proba- law are not protected under Section 1983. tion officer, during off-duty hours, sees a For example, the right to a lawyer during parolee in a local strip joint. One word leads a parole release hearing is not given by the to another and the officer arrests and beats Constitution or by federal law, so a violation up the probationer. The officer is acting thereof does not give rise to a 1983 suit. If under color of law. this right is given an inmate, however, by state law, its violation may be punishable The term “color of law” does not mean that under state law or administrative regulation, the act was in fact authorized by law. It is but not under Section 1983. sufficient if the act appeared to be lawful even if it was not in fact authorized.5 Hence, The worrisome aspects of this requirement if the probation/parole officer exceeded law- are not acts of probation/parole officers that ful authority, he or she is still considered to are blatantly violative of a constitutional right have acted under color of law. An example (as when a probation officer searches a proba- is a probation officer who searches a probationer’s house without authorization). The tioner’s residence without legal authoriza- problem lies in the difficulty in ascertaining tion. Such officer is considered to have acted whether or not a specific constitutional right under color of law and therefore may be exists. This is particularly troublesome in sued under Section 1983. probation/parole where the courts have only recently started to define the specific rights to Can federal officers be sued under Section which probationers and parolees are constitu- 1983? The United States Supreme Court tionally entitled. The United States Supreme in Bivens v. Six Unknown Agents,6 decided in Court has decided only a handful of cases 1971, in effect said “yes.” The court stated thus far, although federal district courts and that a cause of action, derived from the courts of appeals have decided many. Some of Constitution, exists in favor of victims of these decisions may be inconsistent with each federal officials’ misconduct. In addition, other. It is important, therefore, for the pro- a federal officer can be sued directly under bation/parole officer to be familiar with the 33 current law as decided by the courts in his or whereas less serious ones are not. This is her jurisdiction. This is the law that must be reflected in the requirement, previously followed regardless of decisions to the con- noted, of “gross negligence” or “deliberate trary in other states. indifference,” etc. In the words of the Eighth Circuit Court of Appeals:10 A probation/parole officer is liable if the above two elements are present. Absence of Courts cannot prohibit a given condi- one means that there is no liability under tion or type of treatment unless it Section 1983. The officer may, however, be reaches a level of constitutional abuse. liable under some other law, as for tort, or Courts encounter numerous cases in under the penal code, but not Section 1983. which the acts or conditions under For example, a drunken probation officer attack are clearly undesirable . . . but who beats up somebody in a downtown bar the courts are powerless to act because may be liable under the regular penal code the practices are not so abusive as to provisions for assault and battery, but not violate a constitutional right. under Section 1983. Regrettably, the absence of any of the above elements does not pre- Mere words, threats, a push, or a shove do vent the filing of a 1983 suit. Suits may be not necessarily constitute a civil rights viola- filed by anybody at any time. Whether the tion.11 Neither does Section 1983 apply to suit will succeed or not is a different matter. such cases as the officer giving false testimony, simple negligence, or name calling.12 The United State Supreme Court has ruled On the other hand, the denial of the right that defendants in Section 1983 lawsuits to a parole revocation hearing as mandated may raise the qualified (good faith) immunity in Morrissey v. Brewer13 now constitutes defense in both motion to dismiss and a clear violation of a constitutional right. motion for summary judgment, and may be Before 1972, there would have been no able to appeal denials both times in the same violation because the right at that time had case prior to trial.9 not as yet been declared as required by the Constitution.

UPERVISORS ■■■ S B. The Defendant Must Be a III. OTHER LEGAL Natural Person or a Local FFICERS AND O CONSIDERATIONS Government, but Not a State

AROLE Until recently, only natural persons could /P be held liable in 1983 suits. State and local lthough Section 1983 cases require governments were exempt because of the only two requirements to succeed (as ROBATION A P doctrine of sovereign immunity. In 1978, discussed above), there are other considera- however, the United States Supreme Court, tions that help explain when Section 1983 in Monell v. Department of Social Services,14 SSUES FOR

I cases succeed or fail. These are: held that the local units of government may EGAL

L be held liable if the allegedly unconstitution- A. The Violation Must Reach al action was taken by the officer as a part THER

O Constitutional Level of an official policy or custom. What “policy Not all violations of rights lead to liability or custom” means has not been made clear under Section 1983. The violation must and is subject to varying interpretations.

IABILITIES AND be of constitutional proportion. What this Apparently, if the employee on his or her L means is not exactly clear, except that own and without sanction or participation IVIL C unusually serious violations are actionable, by the local government deprived another 34 CHAPTER of his or her rights, no liability attaches to Harlow v. Fitzgerald,15 wherein the Court the local government even if the officer is said: adjudged liable. We therefore hold that government 3 C

Monell does not affect state immunity officials performing discretionary func- IVIL because it applies to local governments only. tions generally are shielded from liabil- L This is not of much consolation to state ity for civil damages insofar as their IABILITY officers, however; civil rights cases can be conduct does not violate a clearly

filed against the state officer himself, and he established statutory or constitutional U or she will be personally liable if the suit right of which a reasonable person NDER succeeds. While Monell involved social serv- would have known. . . . The judge F ices personnel, there is no reason to believe appropriately may determine, not EDERAL it does not apply to local probation/parole only the currently applicable law, but operations. Lower courts have already whether that law was clearly estab- L AW

applied it to many local agencies. lished at the time an action occurred. : S

If the law at that time was not clearly ECTION While local governments can be sued, states established, an official could not rea-

generally cannot be sued because they are sonably be expected to anticipate sub- 1983 C insulated from liability by the doctrine of sequent legal developments, nor could “sovereign immunity,” which means that a

he fairly be said to “know” that the law ASES sovereign is immune from lawsuit because it forbade conduct not previously identi- can do no wrong. The one big exception to fied as unlawful. this rule, however, is if sovereign immunity has been waived by the state (and many states The above excerpt indicates that the good have waived sovereign immunity in varying faith defense has two requirements: (a) an degrees, thus allowing themselves to be sued) officer violated a clearly established statutory through legislation or court decisions. or constitutional right, and (b) of which a reasonable person would have known. Both ■■■ must be established by the plaintiff; otherwise no liability is imposed.

IV. DEFENSES IN SEC- Although the Harlow case, above, did not TION 1983 LAWSUITS involve probation or parole officers (it involved two White House aides under here are a number of defenses to Section former President Nixon), the Court, in 16 T 1983 cases, usually depending upon Anderson v. Creighton, later said that the the facts of the case. Two of those defenses Harlow standard applies to other public offi- (the others being more technical) are dis- cers, such as the police, who are performing cussed here. One is the good faith defense their responsibilities. In the Anderson case, and the other the probable cause defense. a federal agent and other law enforcement officers made a warrantless search of a home, A. The Good Faith Defense as believing that a bank robber was hiding there. The family that occupied the home Defined in Harlow v. Fitzgerald then sued for violation of the fourth amend- The “good faith” defense in Section 1983 ment right against unreasonable search and cases holds that an officer is not civilly liable seizure, alleging that the agents’ act was unless he or she violated a clearly established unreasonable. On appeal, the Court said statutory or constitutional right of which a that the lower court should have considered reasonable person would have known. This not only the general rule about home definition was given in the 1983 case of 35 entries, but also the facts known to the during the arrest. The Court said yes, but agents at the time of entry. According to the did not impose monetary damages on the Court, the proper inquiry was whether a officers because the officers acted in good reasonable law enforcement officer could faith. The Court said that the right violated have concluded that the circumstances sur- at the time of the incident was not yet “clear- rounding that case added up to probable ly established,” since at that time it was not cause and exigent circumstances, which clear whether ride-alongs were violative of would then justify a warrantless search. If constitutional rights. The law enforcement such a conclusion is possible, then the good officers, therefore, did not violate a “clearly faith defense applies. This should apply to established constitutional right of which a probation and parole officers as well. In reasonable person would have known.” From short, if a reasonable probation or parole now on, however, law enforcement officers officer could have concluded that the cir- who invite the media to “ride along” to take cumstances surrounding the act make the pictures during an arrest may be held liable action taken legal and valid, then the good because they will violate a “clearly established faith defense should apply. constitutional right of which a reasonable person would have known.” When is a right considered to be “clearly established?” The Federal Court of Appeals The good faith defense has two important for the Fifth Circuit sets this standard: “A implications for probation and parole offi- plaintiff must show that, when the defendant cers and agencies. First, officers must know acted, the law established the contours of the basic constitutional and federal rights of a right so clearly that a reasonable official offenders. Although officers may be familiar would have understood his or her acts were with these rights from college courses and unlawful.” The court then added that: “If corrections training, their knowledge needs reasonable public officials could differ on the constant updating in light of new court lawfulness of the defendant’s actions, the decisions in criminal procedure and consti- defendant is entitled to qualified immunity.”17 tutional law. The second implication of the Harlow test is that it places an obligation on UPERVISORS

S The “clearly established” requirement of a police agencies to constantly inform their Section 1983 good faith defense may be officers of new cases that establish constitu- illustrated by the recent case of Wilson et al. tional rights. Moreover, agencies must update

FFICERS AND v. Layne, otherwise known as the “media

O their manuals or guidelines to reflect decided ride-along case,” decided by the Court in cases not only from the United States

AROLE 1999.18 Although involving a police officer,

/P Supreme Court but also from federal courts the case should apply to probation and in their jurisdiction. parole officers as well because the principle ROBATION P is the same. In this case, federal and local Some Good Faith Concerns law enforcement agents invited a newspa- There are issues other than the meaning of

SSUES FOR per reporter and a photographer to accom- I good faith that need to be addressed in this pany them while executing a warrant to

EGAL section. One is the question of procedure L arrest a suspect who was the son of the during the trial. The question is this: In a

THER plaintiffs. The son was not in the house,

O Section 1983 case, should the plaintiff prove but the reporters photographed the inci- bad faith on the part of the defendant to be dent, although the photographs were never entitled to damages, or is it enough for the even published by their newspaper. The par- plaintiff to state that he or she was deprived IABILITIES AND

L ents sued. The issue on appeal was whether of a constitutional right and leave it to the

IVIL plaintiffs’ constitutional rights were violated C defendant to prove good faith, if that be his when law enforcement agents invited the or her defense? This is important because 36 photographers to ride along with them it is often difficult for a plaintiff to prove CHAPTER the bad faith state of mind. Obviously, the faith, may go about his business defendant will always claim good faith in an secure in the knowledge that a quali- effort to justify his or her act. In Gomez v. fied immunity will protect him from Toledo,19 decided in 1980, the United States personal liability for damages that are 3 C

Supreme Court resolved this issue, which more appropriately chargeable to the IVIL had long troubled lower appellate courts and populace as a whole. L had resulted in inconsistent decisions. The IABILITY Court stated that in Section 1983 actions The decision should cause some concern to

the plaintiff is not required to allege, much probation and parole officers employed by U less prove, that the defendant acted in bad local agencies because of its budgetary and NDER faith in order to state a claim for relief. The supervisory implications. It would appear F burden is on the defendant to plead good from the decision that once damage is EDERAL faith as an affirmative defense. The court established in court, liability on the part construed the provisions of Section 1983 of the agency ensues under the “equitable L AW

as requiring only two allegations: loss-spreading” rationale, even if the act was : S

done in good faith by municipal officials. ECTION ■ The plaintiff must allege that some person The concomitant budgetary strain from this

has deprived him or her of a federal right. decision is obviously difficult to estimate. 1983 C Should the liability have no exceptions, then ■ The person who has deprived him of that

the decision may have the salutary effect of ASES right acted under color of law. motivating local governments to scrutinize their own rules and practices as an act of The decision is significant in that the defen- fiscal wisdom. The Court in fact hoped dant in a civil rights suit now has the burden that the threat that damages may be levied of proving good faith in the performance of against the city might encourage those in his or her responsibilities. The officer must policymaking positions to institute internal rely on the strength of his or her own good rules and programs designed to minimize faith defense instead of hoping that the the likelihood of unintentional infringements plaintiff’s case is weak and that it fails to on constitutional rights. In addition, the prove bad faith. Court anticipated that the threat of liability A second important issue involving good faith ought to increase the attentiveness with was resolved by the United States Supreme which officials at higher levels of government Court in Owen v. City of Independence,20 also supervise the conduct of their subordinates. decided in 1980. In Owen, the Court said Unless subsequent decisions blunt its sharp that a municipality sued under Section 1983 effects, the Owen case, although assuring a cannot invoke the good faith defense, which degree of victim compensation at a time is available to its officers and employees. when it is fashionable to do so, may create Stating that individual blameworthiness is problems among local governmental agen- no longer the acid test of liability, the Court cies that will doubtless have interesting ram- said that “the principle of equitable loss- ifications for local probation/parole officers. spreading has joined fault as a factor in distributing the costs of official misconduct.” B. The Probable Cause Defense, The decision concluded thus:21 but Only in Fourth Amendment Cases The innocent individual who is harmed The second defense in Section 1983 dis- by an abuse of governmental authority cussed in this chapter is the probable cause is assured that he will be compensated defense. It states that the officer is not liable for his injury. The offending official, in cases where probable cause is present. It is so long as he conducts himself in good a limited type of defense because it applies 37 only in fourth amendment cases where V. SECTION 1983 AND probable cause is required for the probation or parole officer to be able to act legally. It STATE TORT CASES cannot be used in cases alleging violations COMPARED of other constitutional rights, such as the 1st, 5th, 6th, or 14th amendments. tate tort cases (discussed in chapter 2) One court has said that for purposes of a S and Section 1983 cases (discussed in legal defense in Section 1983 cases, probable this chapter) can be confusing unless their cause simply means “a reasonable good faith basic features are identified. Table 3–1 pres- belief in the legality of the action taken.”22 ents a comparison of these two types of That standard is lower than for the fourth lawsuits that are usually brought against amendment concept of probable cause, probation/parole officers. which is defined as “more than bare suspicion; it exists when the facts and circum- ■■■ stances within the officers’ knowledge and of which they had reasonably trustworthy SUMMARY information are sufficient in themselves to warrant a man of reasonable caution in ivil liability cases in federal court are the belief that an offense has been or is Cgenerally known as Section 1983 cases. being committed.” Based on Title 42 of the United States Code, Section 1983 cases need two requirements

Table 3–1. Types of Lawsuits Brought Against Probation/Parole Officers Federal (Section 1983) Cases State Tort Cases

UPERVISORS Based on federal law Based on state law S

Plaintiff seeks money for damages and/or Plaintiff seeks money for damages policy change FFICERS AND O Law was passed in 1871 Usually based on decided cases AROLE /P Usually tried in federal court Usually tried in state court ROBATION P Only public officials can be sued Public officials and private persons can be sued

SSUES FOR Basis for liability is violation of a constitutional Basis for liability is injury to person or property I right or of a right secured by federal law of another in violation of a duty imposed by EGAL L state law THER O “Good faith” defense means the officer did not “Good faith” defense usually means the officer violate a clearly established constitutional or acted in the honest belief that the action taken federal right of which a reasonable person was appropriate under the circumstances

IABILITIES AND should have known L IVIL C

38 CHAPTER if they are to succeed. The first is that the 6. 403 U.S. (1971). defendant acted under color of law; the second is that the violation must be of a consti- 7. See supra note 5, at 9. tutional right or of a right given by federal 3 8. Richardson v. McKnight, 117 S. Ct. 2100 C (but not by state) law. There are a number IVIL of defenses in Section 1983 cases, two of (1997). L which are discussed in this chapter. The first IABILITY 9. Behrens v. Pelletier, 116 S. Ct. 834 (1996). is the good faith defense, meaning that the

officer is not liable unless he or she violated U

10. Witsie v. California Department of NDER a clearly established statutory or constitu- Corrections, 406 F.2d 515 (8th Cir. 1968). tional right of which a reasonable person F EDERAL would have known. This good faith defini- 11. See supra note 1, at 9, 10. tion in Section 1983 cases is different from the good faith definition in state tort cases. L 12. See supra note 5, at 30. AW

The second defense is probable cause, mean- : S ing that the officer is not liable if probable 13. 408 U.S. 471 (1972). ECTION cause was present when the action was taken. This defense, however, is limited only 14. 436 U.S. 658 (1978). 1983 C to fourth amendment cases and does not 15. 457 U.S. 800 (1982). apply to violations of any other constitu- ASES tional right. 16. 483 U.S. 635 (1987).

Notes 17. Fraire v. City of Arlington, 957 F.2d 1268 1. M. Weisz and R. Crane, Defenses to Civil (5th Cir. 1992). Rights Actions Against Correctional Employers (Correctional Law Project, American 18. No. 98-93 (1999). Correctional Association, 1977). 19. 446 U.S. (1980). 2. 365 U.S. 167 (1961). 20. 445 U.S. 622 (1980). 3. 408 U.S. 471 (1972). 21. Id. at 4399. 4. Williams v. United States, 342 U.S. 97 22. Rodriguez v. Jones, 473 F.2d 599 (1951). (5th Cir. 1973). 5. Americans for Effective Law Enforcement, Defense Manual: Civil Rights Suits Against Police Officers—Part I, at 13 (1979).

CHAPTER 4 Legal Representation, Attorneys’ Fees, and Indemnification

INTRODUCTION

I. LEGAL REPRESENTATION

A. In Civil Liability Cases B. In Criminal Liability Cases

II. ATTORNEYS’ FEES

A. In State Tort Cases B. In Section 1983 (Federal) Cases

III. INDEMNIFICATION IN CASE OF LIABILITY

IV. LEGAL REPRESENTATION AND INDEMNIFICATION: THE LAW IN TWO STATES—TEXAS AND KANSAS

A. In Texas B. In Kansas

V. PROFESSIONAL LIABILITY INSURANCE

SUMMARY

NOTES HPE 4 CHAPTER

CHAPTER INTRODUCTION grossly negligent”; in others, it means that the officer has not violated a state rule or law; probation/parole officer facing a liabili- in others, it denotes that the officer acted in the honest belief that what he or she did was 4 ty lawsuit under state or federal law has A L three immediate concerns: legal representa- proper and appropriate under the circum- EGAL stances. In contrast, the definition of good

tion, attorneys’ fees, and indemnification R (that is, who pays for the damages imposed) faith in Section 1983 (federal) cases is clear— EPRESENTATION in case of liability. These concerns are dis- it means that the officer is not liable unless cussed below in the light of legal research he or she violated a clearly established statu- and findings from an extensive survey dis- tory or constitutional right of which a reason- tributed to the offices of attorneys general able person would have known. , A nationwide for the first edition of this mono- TTORNEYS In many states, if an officer’s behavior is graph. The survey was conducted in the early within state guidelines, the attorney general eighties, but, as best we know, no other sur- may serve as the officer’s legal counsel in the ’ F vey or study has been conducted since then EES lawsuit. Many states have no other provi- specifically on these issues in relation to pro- , sions for the defense of state employees. In AND bation/parole officers. The survey results are

some states, however, if the particular act I dated, but no other information is currently NDEMNIFICATION comes under an applicable insurance policy, available on these topics; hence, the results the insurer’s counsel may undertake the are used here with available updates. defense. Reliance on such insurance can be ■■■ risky, however, if policy limits are unrealisti- cally low. In these cases, insurance carriers sometimes simply pay the limit of their lia- I. LEGAL REPRESEN- bility in court in lieu of defending a suit, TATION realizing that it can be less expensive for them to settle the lawsuit. The officer could be left unrepresented and exposed personally tates use various guidelines in deciding for the balance of the claim. Moreover, the what kinds of acts of public officers they S officer and agency will bear the blemish of will defend. In general, the states are more having been held liable in a civil liability willing to provide legal assistance to state case even if the case could perhaps have employees sued in civil cases than they are in been won if it went to trial. criminal cases. All of the states in the survey cover civil actions, at least some of the time, Some states permit outside lawyers to be for both probation and parole officers. A hired at state expense to defend a state substantial percentage, however, indicate employee. These states usually allow reim- that they will not defend in all civil suits. bursement by the state or agency for lawyers’ fees and court costs if the employee wins A. In Civil Liability Cases the suit after the state’s attorney general’s Most states set few limitations on the types office has refused to defend the officer. On of acts they will defend in civil suits, requir- the other hand, if the state does undertake ing only that the officer’s act or omission the defense of the officer and the individual occur within the scope of employment, as is found to have acted in bad faith, and they define it. Some states require, addition- thus held liable, such officer may have to ally, that the officer act in good faith. The reimburse the state for costs (in at least term “good faith” is ill defined in state tort three states). Thus, there are uncertainties law, and the definition varies from state to involved in obtaining legal representation state. In some states, good faith means “not for state officials. 43 The attorney general’s office has consider- for barring evidence of state refusal to able discretion in undertaking the defense of defend in the trial. This could be potentially an officer sued in a civil suit. In those cases damaging evidence against the state employ- in which the attorney general’s office refuses ee because of the implication, warranted or to defend the officer, private legal assistance unwarranted, that the state found the case might have to be obtained. As of the time to be outside the scope of the officer’s duty. of the survey for the first edition, only two State survey results concerning defense of states, California and Vermont, had proce- probation/parole officers in civil cases are dures for appealing the state’s refusal to presented in tables 4–1 and 4–2. defend the officer. Only California required a judicial determination as to whether the B. In Criminal Liability Cases employee was entitled to legal assistance The picture is different if the probation or from the state. parole officer is alleged to be involved in a If known, the fact that the state refuses to criminal action. Almost half of the states defend the officer could serve to prejudice did not undertake a defense of an officer. In the judge or jury. However, the majority many states, the state becomes the prosecu- of states, with the exception of Maryland, tor against an officer if the charges involve Oklahoma, and Oregon, made no provision criminal liability. A conflict of interest

Table 4–1. Defense of Probation Officers in Civil Cases*

“If a probation officer in your state is sued in a civil case, will the governmental agency undertake the defense of that officer?” (Number of states responding: 49.)

Number Percent Yes 20 40.8 UPERVISORS

S Sometimes 29 59.2 No 0 0.0

FFICERS AND *All the tables in this chapter are taken from R.V. del Carmen and Carol C. Veneziano, “Legal Liabilities, Representation, and

O Indemnification of Probation and Parole Officers,” 17 U.S.F. L. Rev., at 240-243 (1983). AROLE /P

Table 4–2. Defense of Parole Officers in Civil Cases ROBATION P “If a parole officer in your state is sued in a civil case, will the governmental agency undertake the

SSUES FOR defense of that officer?” (Number of states responding: 50.) I EGAL L Number Percent

THER Yes 22 44.0 O Sometimes 28 56.0 No 0 0.0 IABILITIES AND L IVIL C

44 CHAPTER would thus prevent the state from represent- A. In State Tort Cases ing the probation or parole officer. The The general rule in state tort cases is that responses from several of the states in the each party pays attorneys’ fees regardless of survey indicated that state legal representa- 4 who wins or loses. Example: A probationer L tion would be at the discretion of the attor- brings a state tort case against a probation EGAL ney general’s office. Others stated that the

officer. Whether the probationer wins or R situation had never arisen and that the poli- loses the case, he or she pays his or her own EPRESENTATION cies were unclear. Very few states indicated lawyer. By the same token, whether the pro- unequivocally that the state would under- bation officer wins or loses, he or she pays take the defense of an officer if the case were his or her own lawyer. In a few states, how- a criminal matter. State survey results con- ever, this rule differs, and the defendant may , A cerning defense of probation/parole officers be made to pay plaintiff’s attorneys’ fees if TTORNEYS in criminal cases are presented in tables 4–3 he or she loses the case. This is the excep- and 4–4. tion, however, rather than the general rule. ’ F EES ■■■ ,

B. In Section 1983 (Federal) AND Cases I NDEMNIFICATION II. ATTORNEYS’ FEES The rule in federal cases is different and deserves a more extended discussion. In he discussion on attorneys’ fees must 1976, Congress passed legislation providing T be addressed under fees in state tort attorney’s fees for cases of this nature at the cases and fees in Section 1983 cases because federal level. The act, known as the Civil the rules are different. Rights Attorney’s Fees Awards Act of 1976

Table 4–3. Defense of Probation Officers in Criminal Cases

“If a probation officer in your state is sued in a criminal case, will the governmental agency undertake the defense of that officer?” (Number of states responding: 47.)

Number Percent Yes 4 8.5 Sometimes 21 44.7 No 22 46.8

Table 4–4. Defense of Parole Officers in Criminal Cases

“If a parole officer in your state is sued in a criminal case, will the governmental agency undertake the defense of that officer?” (Number of states responding: 49.)

Number Percent Yes 4 8.2 Sometimes 22 44.9 No 23 46.9

45 (Section 1988), allows the court to award suit.7 A defendant such as a public employ- attorney’s fees to the prevailing party in ee, however, must not only “win”; he or she some types of federal civil rights suits. must show that the plaintiff’s suit was frivo- The act provides:1 lous, unreasonable, or unfounded.8 The law, therefore, tends to favor the person bringing In any action or proceeding to enforce a a lawsuit against the probation/parole offi- provision of Sections 1981, 1982, 1983, cer. Although this may be harsh to govern- 1985, and 1986 of 42 U.S. Code . . . ment officers, it is not surprising because the or Title VI of the Civil Rights Act of law was designed to deter unconstitutional 1964, the Court, in its discretion, may actions by government agencies and officers. allow the prevailing party, other than the United States, a reasonable attor- The Attorneys’ Fees Act appears to have ney’s fee as part of the costs. been expanded in a 1980 case. Originally, Section 1983 and Section 1988 were applied Prior to the passage of this act, an award of to violations of constitutional rights only. attorneys’ fees was relatively rare. The passage However, the Supreme Court decided in the of this act made it more likely that a prevail- case of Maine v. Thiboutot 9 that individuals ing party in a federal civil rights suit can also could sue for violations of any citizen’s rights collect attorney’s fees, as well as damages or created under any federal statutes (in this injunctive relief, from the defendant.2 case, denial of federal welfare payments by the state agency). Furthermore, the Court The act allows an award of fees to the “pre- ruled that successful plaintiffs could recover vailing party” in a federal action. The term legal fees from the losing parties. This deci- “prevailing party” has been broadly defined. sion may serve to provide individuals with For example, an award of fees has been further means of bringing suit under federal found appropriate even where the parties law beyond civil rights in such areas as 3 reached a voluntary settlement. And in the administration of federal programs. 4 Maher v. Gagne, the U.S. Supreme Court Probation and parole agencies that partici- said that attorney’s fees may be awarded pate in federal programs potentially can be

UPERVISORS when a party prevails in a consent decree, S subject to lawsuits under Section 1983 if with no judicial determination that federal they violate federal laws applicable to these rights have been violated. This means that programs and may have to pay attorney’s

FFICERS AND even if the case is settled out of court, the

O fees for the other party if they lose the law- defendant may be made to pay attorney’s suit. If the individual bringing the suit pre-

AROLE fees. Even if the plaintiff does not succeed

/P vails, attorney’s fees may be awarded. on all the issues of the case, he or she can still be the “prevailing party” for the pur- Federal courts have adopted somewhat dif- ROBATION 5 P poses of Section 1988. A defendant who fering standards for determining the appro- does not actually “lose” a case can thus be priateness of a fee award. According to a required to pay the plaintiff’s attorneys’ fees. SSUES FOR United States Supreme Court case, the fol- I Moreover, the governmental agency or unit lowing factors are likely to be considered:10 EGAL

L that employed the individual sued can be ■

THER ordered to pay the attorney’s fees, even The time and labor required by the O though it is not a named defendant.6 attorney.

■ The novelty and difficulty of the legal Under this act, prevailing probation/parole questions presented.

IABILITIES AND officers may also be awarded attorneys’ fees L but not on the same basis as prevailing ■ The skill required to perform the legal IVIL C plaintiffs. A plaintiff is usually awarded fees services. 46 because he or she is found to have won the CHAPTER ■ The preclusion of other employment by III. INDEMNIFICA- the attorney due to acceptance of the case. TION IN CASE OF ■ The customary fee in the community. 4 ■ LIABILITY L Whether the fee is case fixed or contingent EGAL on winning the case.

f an employee is held liable for his or her R ■ Time limitations imposed by the client or Iactions, who pays for damages assessed by EPRESENTATION circumstances. the court? A majority of the states provide ■ The amount involved and the results for indemnification or reimbursement for obtained. civil damages assessed against employees. However, the amount that states are willing , A TTORNEYS ■ The experience, reputation, and ability of to pay varies considerably. In addition, the the attorney. conditions under which the state will pay

■ The undesirability of the case. differ and are sometimes unclear. Some states ’ F

set no limit on the amount of money they EES ■

The nature and length of the professional ,

will pay in a suit against a state employee. AND relationship with the client. The majority of states set some type of I ■ Awards in similar cases. limit.15 If the court awards the plaintiff an NDEMNIFICATION amount larger than the maximum allowed Although no research is currently available, by the state, the employee will likely have it may be surmised that awarding attorney’s to pay the difference. The states, therefore, fees to the prevailing party may have encour- range from not allowing indemnification to aged the filing of cases under Section 1983 setting no limit. instead of under state tort. Attorneys are more likely to accept cases where they can Although most states provide some form of collect fees if they prevail. Case law shows indemnification for officers who are sued, that attorneys’ fees awards in some cases may this does not mean that the state will auto- grossly exceed damages awarded to plaintiffs. matically indemnify. The majority of states For example, in one case, the Federal Court will help pay the judgment only if the act on of Appeals for the Eleventh Circuit awarded which the finding of liability is based was $162,209.50 in attorneys’ fees and court “within the scope of employment,” whatever costs in a police case, although the damage that phrase may mean in a particular juris- award was only $500 in compensatory and diction. State survey results concerning pro- $10,000 in punitive damages.11 In another bation/parole officer indemnification are law enforcement case, the Federal Court presented in tables 4–5 and 4–6. of Appeals for the Ninth Circuit upheld an award of $66,535 in attorneys’ fees to a For procedural purposes, an important ques- plaintiff who was awarded only $1 in dam- tion is: Whose determination of good faith ages.12 In yet another case, the Federal Court is binding for purposes of indemnification of Appeals for the Fifth Circuit approved the eligibility? In general, the determination is award of $5,000 in attorneys’ fees for a $1 made by either the state attorney general, award in nominal damages.13 The $5,000 the court trying the case, or the state agency. attorneys’ fees award, however, was reversed In some states, the court decision indicates by the United States Supreme Court on whether or not the employee acted in bad appeal, the Court saying that although faith. If, however, the state makes a pretrial plaintiff was a “prevailing party,” in such investigation to determine if the employee cases, the “only reasonable fee is usually is eligible for state legal representation, the no fee at all.”14 result of that investigation could potentially 47 Table 4–5. Probation Officer Indemnification

“If a probation officer in your state is held civilly liable, will the governmental agency of which he is an employee pay or indemnify?” (Number of states responding: 48.)

Number Percent Yes 9 18.8 Sometimes 33 68.7 No 6 12.5

Table 4–6. Parole Officer Indemnification

“If a parole officer in your state is held civilly liable, will the governmental agency of which he is an employee pay or indemnify?” (Number of states responding: 49.)

Number Percent Yes 10 20.4 Sometimes 32 65.3 No 7 14.3

bind the state to indemnity, even if a subse- In summary, a probation/parole officer who quent court decision on the case finds that is sued faces a number of uncertainties. He the employee acted in bad faith. In some or she may ask for and be provided with states, the steps for determining good faith legal assistance, depending on the state. If UPERVISORS S are unclear; some indicated that the situa- the state has provision for indemnification, tion had not yet arisen with respect to pro- the officer may have to undergo more than bation/parole officers. In other states, only one determination of good faith, in which FFICERS AND

O the matter of scope of employment must be “good faith” might not be a well-defined determined, not the usually broader issue of or consistently applied term. Despite these AROLE

/P the presence or absence of good faith. determinations, a court ruling against an employee may negate that claim to good

ROBATION There are jurisdictions that, by law, exempt faith and consequently the claim to indem- P officers from liability in state tort cases. nification. Even if the officer is indemnified, Other jurisdictions specifically provide that not all expenses may be covered, particularly SSUES FOR I plaintiffs sue the government employer, not in states that place a limit on the amount of

EGAL the officer, in tort cases. For example, federal indemnification. Finally, state assistance may L law states that in tort cases the government, vary depending on whether the lawsuit is THER

O not the officer, is to be sued. By contrast, in brought in state or federal court. Section 1983 cases, the officer is to be sued, not the federal government.16 IABILITIES AND L IVIL C

48 CHAPTER IV. LEGAL REPRE- the contrary, it may be presumed that this covers damages resulting from litigation in SENTATION AND state and federal courts. It must be noted that nothing prevents the state from paying 4

INDEMNIFICATION: L monetary damages beyond the above amounts EGAL THE LAW IN TWO specified by law (unless proscribed in the R STATES—TEXAS court decision), but the state’s obligation is EPRESENTATION limited to what state law provides. AND KANSAS B. In Kansas

he law on legal representation and The situation in Kansas is complicated , A TTORNEYS T indemnification varies from one state somewhat by the structure of probation and to another, in states that have such laws. The parole in that state. Parole officers are con- laws of two states are summarized below to

sidered to be state officers employed by the ’ F illustrate how state laws do differ. Kansas Department of Corrections. Thus, EES ,

under state law, parole officers are eligible to AND A. In Texas be defended under the Kansas Tort Claims I In Texas, probation (juvenile and adult) and Act.18 Legal defense would generally be NDEMNIFICATION parole officers are state officers for purposes provided by the Kansas Department of of representation and indemnification, Corrections. Court services officers, who although they are considered local employees supervise both adult and juvenile probation- for other purposes. Texas law provides that ers, are also considered state officers even the state attorney general’s office is obliged though they are structurally under the to defend employees who are sued and the Kansas judicial branch. While clearly eligible state indemnifies employees who are held for legal defense under state law, it is unclear liable.17 The state is required to pay damages whether defense would be provided by the imposed on employees but only for official Kansas attorney general’s office or the specific acts or omissions, as determined by the county/district in which the court services state attorney general’s office. The law also officer works, especially in state tort cases. requires the state to provide counsel in law- The Kansas attorney general’s office will suits where an employee is sued in connec- provide representation for any state employee tion with official conduct. It further provides sued in federal court. In both instances, the that notification must be given to the attor- statute requires that the employee must ney general’s office within 10 days after the request legal defense within 15 days of serv- probation/parole officer is served with notice ice of process or subpoena upon the employee of the lawsuit. in the action. Refusal to provide defense may occur under any one of the following condi- Indemnification under Texas law is limited. tions: (1) the act or omission was not within The state liability payment is capped at the scope of the employee’s employment; (2) $100,000 to a single plaintiff and at $300,000 the employee acted or failed to act because to multiple plaintiffs if the liability resulted of actual fraud or actual malice; (3) the from a single occurrence. Payment of damages defense of the action by the governmental is limited to cases of personal injury, death, entity would create a conflict of interest or deprivation of a right or privilege. The between the governmental entity and the state will also pay damages up to $10,000 employee; or (4) the request was not made for damage to property arising from a single in accordance with statute as described occurrence. In the absence of provision to above.

49 Legal defense for community corrections offi- like medicine and law. Although no recent cers is a bit more complicated. In Kansas, com- figures are available, in the survey for the munity corrections programs are established first edition of this publication, a minority either by single counties or interlocal agree- of states (30 percent) had purchased this ments between multiple counties. While insurance for probation and parole officers. funding for such programs is provided The purchase of insurance is likely to depend by grants from the Kansas Department on the standards for the immunity doctrine of Corrections and/or the Kansas Juvenile in the particular state or jurisdiction. It may Justice Authority, officers are generally con- also depend on statutes legally authorizing sidered to be employees of the county or the government unit or agency to purchase counties who established the programs. insurance, as authorization must exist to Thus, legal representation would generally take such action.20 Then there is always the be provided by the county entities involved issue of who pays the premium. Some states or through liability insurance carried by the prohibit the payment of a professional insur- county or program for such purposes. Each ance premium with public funds.21 set of circumstances will be different, so it is important that the community corrections Insurance for public employees is sometimes officer ascertain the particular arrangement rejected for fear it might encourage the filing that applies in his or her district. of lawsuits by citizens against public officers. It is also assumed that the amount of dam- Indemnification for state officers is permissi- ages awarded would increase if the judge or ble in Kansas for injury or damages proxi- jury become aware that the costs would be mately caused by an act or omission of the borne by an insurance company rather than employee acting within the scope of his or by an individual or governmental unit.22 In her employment. The employee will not be many jurisdictions, however, insurance own- indemnified, however, for any punitive or ership or governmental indemnification can- exemplary damages, or for any costs, judg- not be mentioned at a trial or hearing. In ments, or settlements that are paid through addition, it can be argued that if insurance an applicable contract or policy of insur- coverage is available, the public would be

UPERVISORS 19 S ance. It is also critical that the employee better served, in that the public officer cooperate in good faith in the defense of the would better fulfill his duties if he were not claim or risk loss of indemnification. Kansas concerned with personal liability for acts FFICERS AND

O statute provides a cap of $500,000 for any performed in good faith and in the scope number of claims arising out of a single of his or her duties if the worry about civil AROLE

/P occurrence or accident. liability diminished.

■■■ Insurance appears to be desirable in jurisdic- ROBATION P tions where state legal representation or V. PROFESSIONAL indemnification is uncertain or nonexistent. SSUES FOR Insurance policies, however, cover only acts I performed within the scope of employment

EGAL LIABILITY L and may require a demonstration of good

THER INSURANCE faith. In jurisdictions that do not provide for O insurance purchase, agencies might work for ince public employees in many states the modification of statutes and policies so S might not be able to obtain legal rep- that insurance for agency employees can be IABILITIES AND

L resentation or indemnification if they are obtained with public funds. State survey

IVIL sued, professional liability insurance for results concerning probation/parole officer C probation/parole officers becomes attractive. liability insurance are presented in tables 50 It is a necessity in high-profile professions 4–7 and 4–8. SUMMARY Notes CHAPTER 1. 42 U.S.C. Sec. 1988 (1976). egal representation and indemnification 4 are two real concerns of probation/parole 2. Americans for Effective Law Enforcement, L L officers in liability cases. The survey for the Defense Manual: The Civil Rights Attorney’s Fees EGAL Awards Act of 1976, at 3 (1979). first edition of this monograph shows that R modes of representation and indemnifica- EPRESENTATION tion vary greatly among states, ranging from 3. Americans for Effective Law Enforcement, guaranteed representation or indemnifica- Defense Manual: Civil Rights Suits Against Police tion to no formal policy whatsoever. Most Officers—Part II, at 61 (1979); Brown v. states that provide representation do so in Culpepper, 559 F.2d 274 (5th Cir. 1977). , A civil cases only, while others include criminal TTORNEYS 4. Maher v. Gagne, 48 LW 4893 (1980). cases as well. The Civil Rights Attorney’s Fees Awards Act of 1976 allows courts to award 5. Guajardo v. Estelle, 432 F. Supp. 1373 ’ F fees to the prevailing plaintiff in a civil rights EES (S.D. Tex. 1977), modified 580 F.2d 748 lawsuit. There is hardly any policy as to who , (5th Cir. 1978). AND pays these fees. Some states pay; others do I not. Professional liability insurance provides 6. Hutto v. Finney, 437 U.S. 678 (1978). NDEMNIFICATION protection to probation/parole officers but has inherent problems, such as who pays the 7. Id. premium, will it encourage the filing of more lawsuits, and whether or not an insurance 8. Christianberg Garment Co. v. EEOC, company is available to underwrite the policy. 434 U.S. 412 (1978).

Table 4–7. Liability Insurance for Probation Officers

“Is there any form of liability insurance supplied by the governmental agencies that employ probation officers in your state?” (Number of states responding: 48.)

Number Percent Yes 14 29.2 Sometimes 7 14.6 No 27 56.3

Table 4–8. Liability Insurance for Parole Officers

“Is there any form of liability insurance supplied by the governmental agencies that employ parole officers in your state?” (Number of states responding: 50.)

Number Percent Yes 15 30.0 Sometimes 5 10.0 No 30 60.0 51 9. Maine v. Thiboutot, 448 U.S. 1 (1980). 17. See Chapter 104, Texas Civil Practices and Remedies Code. 10. Hutto v. Finney, 437 U.S. 678 (1978). 18. See Kan. Stat. Ann. 75-6108. 11. Duckworth v. Whisenant, 97 F.3d 1393 (11th Cir. 1996). 19. See Kan. Stat. Ann. 75-6109.

12. Wilcox v. Reno, 42 F.3d 550 (9th Cir. 20. Texas Advisory Commission on 1994). Intergovernmental Relations, Intergovernmental Brief, Tort Liability 13. Farrar v. Hobby, 941 F.2d 1311 (5th Insurance for Public Employees and Officials: Cir. 1991). An Introductory Guide, at 8 (August 1978).

14. Farrar v. Hobby, 61 LW 4033 (1992). 21. For example, Article 11, Section 57 of the General Appropriations Act for FY 15. Committee on the Office of Attorney 1996–1997 prohibited the use of funds General, Sovereign Immunity: The Tort Liability under the Act for purchasing insurance to of Government and Its Officials (September cover claims under the Texas Tort Claim 1979). Act. See unpublished opinion letter of Todd Jermstad, Assistant General Counsel for the 16. See generally provisions of the Federal Texas Department of Criminal Justice, dated Employees Liability Reform and Tort January 18, 1996. Compensation Act of 1988, 28 U.S.C. Section 1671. 22. W. Prosser, Handbook of the Law of Torts, Fourth Edition (1971). UPERVISORS S FFICERS AND O AROLE /P ROBATION P SSUES FOR I EGAL L THER O IABILITIES AND L IVIL C

52 CHAPTER 5 Presentence/Preparole Investigations and Reports

INTRODUCTION

I. PROBATION PRESENTENCE REPORT ISSUES

A. Contents 1. General 2. Victim Information 3. Hearsay 4. Confrontation and Cross-Examination 5. Criminal Record 6. Suppressed Evidence B. Disclosure 1. In General 2. Disclosure to Third Parties C. Officers Are Generally Immune From Civil Liability When Preparing Presentence Investigation Reports

II. PREPAROLE INVESTIGATION AND REPORT ISSUES

A. Federal Prisoner File Access B. State Prisoner File Access 1. The Greenholtz Case—Due Process Applies? 2. Sandin v. Conner—The Greenholtz Standard Is Rejected 3. Does Due Process Include Access to File?

III. RIGHT TO NOTICE OF A PAROLE HEARING HPE 5 CHAPTER SUMMARY

NOTES

INTRODUCTION A. Contents CHAPTER The purpose of the presentence report is to resentence and preparole investigations help the judge impose the most appropriate 5 are important for the offender. Often sentence by providing him or her with infor- P P such investigations determine how much mation about the defendant’s life and char- RESENTENCE time an offender spends in prison (presen- acteristics, and, if customarily or specially tence) or whether an offender continues to requested, the informed recommendation

stay in prison (preparole). Offenders do not of the probation officer. The report helps /P lose all constitutional rights because of con- implement the modern concept that rehabil- REPAROLE viction; some rights are lost while others are itation is promoted by individualized sen- retained. Complicating an analysis of legal tences. Because the stage of deciding guilt I issues is that the procedure, substance, and or innocence has passed, it has been held to AND NVESTIGATIONS use of presentence reports are governed by be reasonable to allow the judge to exercise state law in some states, but the procedure, wide discretion as to the sources and types substance, and use of preparole reports is of information to be used in sentence selec- often set by agency policy. tion.1 At the federal level, the Federal Rules of Criminal Procedure require presentence R

This chapter discusses the legal issues involved reports to include information about the EPORTS in presentence and preparole reports based defendant’s history and characteristics, on consideration of constitutional rights, state including any prior criminal record, finan- laws, and agency policies. cial condition, and any circumstances that, because they affect the defendant’s behavior, ■■■ may be helpful in imposing sentence or in correctional treatment.2 I. PROBATION Studies examining the actual use of these PRESENTENCE reports indicate some variation in perceived value and use, but in general studies show a REPORT ISSUES high correlation between the report recommendations and the sentence imposed.3 n examination of state court decisions Given its importance, defense counsels feel A shows that the states generally follow that due process, meaning fundamental federal court decisions in determining state fairness, requires their access to the report. use of presentence reports. This is no sur- Lawyers maintain that there is a distinct lib- prise, since most of the federal cases are erty interest involved at the presentencing decided on due process grounds, a constitu- stage that does not always exist after sentence tional issue, thus forcing the states to follow has been passed. In general, however, a judge federal decisions. may appropriately conduct an inquiry broad in scope, largely unlimited either as to the There are states that have afforded defen- kind of information he or she may consider dants greater protections than those required or the source from which it may come.4 by the federal courts. But recent federal activity makes federal courts the leader on 1. General various presentence report legal issues. An examination of the pertinent federal case law State courts and state statutes either require should serve to identify the trends and pat- or allow a variety of data in the presentence terns most jurisdictions follow and use. report. The officer must be aware of the

55 local rules on this subject because they dif- 3. Hearsay fer. Jurisdictions vary, for example, on the “Hearsay” is information that is offered as a use of criminal justice system contacts that truthful assertion that does not come from the were dismissed or did not result in convic- personal knowledge of the person stating the tion. In general, however, it is safe to assume information, but from knowledge that per- that if the information is relevant to the son received from another. Generally, it is not particular case, inclusion in the presentence admissible in trials under the rules of evidence report will be permitted. Rules of evidence, because the truth of the facts asserted cannot so important in criminal trials, are not be tested by cross-examination of the witness. applied strictly in presentence reports. Thus, Decided cases make it clear, however, that in many jurisdictions, hearsay evidence and hearsay is not in and of itself constitutionally evidence illegally obtained by the police may objectionable in a presentence report.26 The be included in the report. Judges may pre- purpose of the report is to aid the judge in scribe, however, the kind of information determining an appropriate sentence; hence, they want excluded—usually based on their it is important that the judge “not be denied concept of fundamental fairness. Some states an opportunity to obtain pertinent informa- specify, by law, what information may be tion by a requirement of rigid adherence to included in the presentence report; other the restrictive rules of evidence properly appli- states leave that decision to judges. cable at trial.”27 In addition, presentence reports are not restricted in their content to 2. Victim Information established fact.28 As the report is usually not Several jurisdictions now allow the inclusion compiled by persons trained in the law, it is of information relating to the victim in a up to the judge to exercise both proper and presentence report. Such information is wide discretion as to the sources and types commonly termed the “victim impact state- of information used to assist the court. This ment,” but the exact terminology varies by does not give the court unlimited discre- state statute or judicial rule. Generally, this tion, however. The defendant must have information includes an itemization of any an opportunity to rebut information that economic loss suffered by the victim, an iden- is claimed to be false. UPERVISORS S tification of any physical injury, including the seriousness and permanence of injury, a 4. Confrontation and Cross-Examination description of any change in the victim’s per- FFICERS AND Some jurisdictions allow the defendant to O sonal welfare or familial relationships as a cross-examine the presentence report author result of the offense, an identification of any AROLE or experts relied upon in compiling the /P request for psychological services initiated by report. The more damaging the information, the victim as a result of the offense, and any the more likely it is that the court will permit ROBATION

P other information related to the impact of cross-examination. Jurisdictions vary in the offense upon the victim that the court restricting of the defendants’ right to con- requires. The contents of these statements front sources of adverse information. Rulings SSUES FOR I vary by jurisdiction, but are allowed in whole, in the Federal Court of Appeals for the 5 6 EGAL

L or in part, in Colorado, Delaware, District Fourth and Seventh Circuits have held that of Columbia,7 Idaho,8 Indiana,9 Louisiana,10

THER defendants have no right to cross-examine 11 12 13 O Maryland, Minnesota, Mississippi, ex parte (on behalf of only one party) com- 14 15 16 Missouri, Montana, Nebraska, New munications between probation officers and 17 18 19 Jersey, New York, North Carolina, the court because the officer is acting as “the 20 21 22 29 IABILITIES AND North Dakota, Oregon, Puerto Rico,

L court’s neutral agent.” Similarly the Federal Vermont,23 Virginia,24 and Wisconsin.25

IVIL Court of Appeals for the Ninth Circuit has C held that cross-examination of probation 56 CHAPTER officers is not allowed at pretrial conferences It can also be argued, however, that sentenc- when the officer merely “explains the basis ing is so closely related to the trial that use for his or her recommendation without stray- of evidence illegally obtained is improper. ing into the area of advocacy or argument.”30 While there is a general tendency in the courts 5 P

to permit all uses of suppressed information RESENTENCE 5. Criminal Record once guilt has been determined, the United A presentence report is not considered mani- States Supreme Court has not ruled specifically on the propriety of its inclusion in pre- festly unjust simply because it contains a /P history of a defendant’s prior arrests and/or sentence reports. Note, however, that in a REPAROLE charges.31 Information relating to prior crim- 1998 case, Pennsylvania Board of Probation inal activity is likely to be considered critical and Parole v. Scott, the Court held that the I and, therefore, subject to mandatory disclo- application of the exclusionary rule is not AND NVESTIGATIONS sure. More recently, jurisdictions are allowing required by the Constitution in parole revo- the use of juvenile records in the presentence cation proceedings and, therefore, its appli- 37 report. A few states, including Kentucky,32 cation is governed by state rules. Probation Massachusetts,33 Montana,34 and Utah,35 officers should ascertain the current rule in allow such records. their jurisdiction. Those rules are binding R

on them. EPORTS 6. Suppressed Evidence The Supreme Court under Chief Justice B. Disclosure William H. Rehnquist has shown some dis- 1. In General favor with the exclusionary rule. This court- On the federal level, the Federal Rules of developed doctrine prohibits the use in a Criminal Procedure38 require a federal judge criminal trial, as direct evidence of the defen- to disclose to a defendant or defendant’s dant’s guilt, of information obtained in vio- counsel all presentence information relied lation of the defendant’s fourth, fifth, or sixth upon in sentencing, excluding: amendment rights. The Court has consistently resisted efforts to extend the remedy ■ Any diagnostic opinions that, if disclosed, of exclusion or suppression of such evidence might seriously disrupt a program of to proceedings other than the trial itself. For rehabilitation; example, the Court has allowed suppressed ■ material to be considered by a grand jury.36 Sources of information obtained upon a promise of confidentiality; or

The current United States Supreme Court ■ Any other information that, if disclosed, majority argues that the rule suppressing might result in harm, physical or other- illegally obtained evidence is justified by the wise, to the defendant or other persons. need to deter police misconduct. In cases where it has held that the extension of the The rule does not give the defendant access exclusion remedy is not warranted, the to a codefendant’s presentence report.39 Court has said that additional deterrence of official misconduct cannot be obtained The general rule is that the court shall disclose without undue harm to the public interest. such information in the report as was taken When examined in the context of a proba- into consideration by the court. However, tion revocation hearing, the argument may some states provide by law that the informa- be sound in that the new proceeding may tion may be given to counsel rather than to be so remote from the misconduct that gave the defendant personally. Counsel may be rise to the trial suppression that no addition- given access with instructions not to disclose al deterrence can be attained through exclu- its content to the defendant.40 Partial access sion from different proceedings. 57 that excludes information for reasons other State statutes or rules have been held to leave than those listed above is insufficient access.41 the matter of disclosure to the discretion of the court in Georgia, Iowa, Maryland, A variation of the application of the rule is Nebraska, Oklahoma, Texas, and Vermont.80 found in the Federal Court of Appeals for the First Circuit, where the judge may either 2. Disclosure to Third Parties identify for the record and disavow any infor- Although Rule 32(c) of the Federal Rules of mation not relied upon or disclose those por- Criminal Procedure sets the federal standard tions of the report that were relied upon.42 for release of presentence reports to defendants, their attorneys, and the prosecuting While the trend is toward disclosure, the attorneys, it remains silent as to the disclo- United States Supreme Court has not con- sure to various “third parties.” No statute or sidered the failure or refusal to disclose the rule requires that presentence reports remain contents of the presentence report as viola- confidential after the sentencing hearing has tive of constitutional rights. However, in a occurred.81 Third parties are defined as per- Florida case involving imposition of the sons or entities other than the courts, the death penalty, the Court did consider it a Parole Commission, the Bureau of Prisons, denial of due process where the sentence was and probation officers. The general trend passed on the basis of information that the both at the state and federal levels has been defendant had no opportunity to deny or that presentence reports are confidential and explain. The case does not indicate that sim- not subject to third party disclosure. More ilar requirements would hold in a noncapital recently, however, the Federal Courts of situation, and at least one Florida court has Appeal for the Second, Fifth, Seventh and refused to apply it in a noncapital case.43 Ninth Circuits and a few state statutes have A few cases have specifically held that there addressed the possibility of disclosure to per- is no constitutional right of access to a pre- sons outside the realm of the court. sentence report.44 But most jurisdictions The states of Arizona, Hawaii, Kansas, require disclosure under a statute or rule of Louisiana, Montana, and New Jersey have UPERVISORS court. The jurisdictions so holding include S addressed some aspect of third party disclo- Alabama,45 Alaska,46 Arizona,47 Colorado,48 sure in statutes or rules of the court. Arizona Connecticut,49 Delaware,50 District of 51 52 53 54 allows the crime victim to inspect the pre-

FFICERS AND Columbia, Florida, Hawaii, Idaho, O sentence report once it is available to the Illinois,55 Indiana,56 Kansas,57 Louisiana,58 82 59 60 61 defendant. Louisiana also allows disclosure AROLE Maine, Maryland, Massachusetts, 83 /P to the victim or designated family member. Michigan,62 Minnesota,63 Montana,64 Montana allows the prosecutor to disclose Nevada,65 New Hampshire,66 New York,67

ROBATION 68 69 70 the contents of the presentence report to P North Carolina, Ohio, Oregon, Penn- the victim.84 Hawaii allows disclosure to sylvania,71 Puerto Rico,72 South Dakota,73 researchers.85 Kansas statutes state that the Tennessee,74 Utah,75 Virgin Islands,76 SSUES FOR I presentence report shall become part of the Virginia,77 Washington,78 and Wisconsin.79

EGAL court record and shall be accessible to the L Caution is suggested here as these jurisdic- public, except the official version, the defen- THER O tions utilize various restrictions on access, dant’s version, the victim’s statements, any such as limiting the disclosure of the sentenc- psychological reports, and any drug and ing recommendation, diagnostic opinions, alcohol reports are exempt form public disclosure.86 New Jersey allows disclosure of the IABILITIES AND victim statements, information obtained L under the promise of confidentiality, and/or defendant’s financial records to its Victims IVIL 87 C any information that, if disclosed, may harm of Crime Compensation Board. 58 a third party. CHAPTER The Federal Court of Appeals for the and a California town’s newspaper.92 The Second Circuit addressed the issue of third case stemmed from the murder of a former party disclosure in United States v. Charmer county district attorney by a man he had Industries and Peerless Industries.88 Charmer successfully prosecuted for arson some 30 5 P involved disclosure of a presentence report years prior to the murder. Soon after the RESENTENCE prepared by the United States Probation killing, the murderer committed suicide to Service to the Arizona State Attorney avoid capture by the police. Although the General. The report contained information court stated that it does not suggest that pre- /P about defendant Peerless Importers, a major sentence reports should be released to third REPAROLE wholesale liquor distributor who had entered parties routinely, it held that the unique a plea of nolo contendere in an antitrust case nature of the case allowed the third party I in New York. The report was requested, and disclosure compelling needs standard to be AND NVESTIGATIONS sent without prior judicial approval, to the met. Disclosure of the presentence report to Arizona Attorney General who was prepar- the estate of the man murdered was based ing, with the Arizona Department of Liquor upon the estate’s argument that it required Licenses and Control, a liquor license revo- disclosure so that it could determine cation proceeding against a subsidiary of whether it had a cause of action for negli- R

Charmer and Peerless Industries. The report gence based on the failure of the probation EPORTS included financial data collected from office to warn the deceased of the threat Peerless, a description of the government’s posed to him by the murderer and that this contentions against the company, and information could not be obtained from any hearsay information from unidentified law other source.93 The court found the newspa- enforcement officers. The Arizona Attorney per’s assertion that disclosure would serve General inquired as to whether the presen- the public interest by informing the public tence report could become part of the public about the sentencing process was valid and record in Arizona. thus met the disclosure standard. The interest in disclosure asserted by the newspaper The Federal Court of Appeals for the Second was found by the court to be rooted in the Circuit issued an injunctive order requiring common law right to inspect judicial records the Arizona Attorney General to return to and documents.94 the court the presentence report and all copies and extracts made of it, and prohibit- The common law right of the media to ed the publication or use of any portion of inspect judicial records that was relied upon the report that was not already publicly avail- by the Ninth Circuit was the basis of an able. The court reasoned that allowing public Illinois newspaper’s request for a presentence availability of presentence reports would report disclosure in the Federal Court of “likely inhibit the flow of information to the Appeals for the Seventh Circuit case, United sentencing judge.”89 The court stated that in States v. Corbitt.95 The case stemmed from order for a presentence report to be disclosed the conviction of a former Illinois police to a third party, the party must make “a par- chief of three counts of extortion and racket- ticularized showing of a compelling need.”90 eering. During the sentencing phase of the Similarly, the third party must demonstrate trial, the presiding judge imposed a lesser that disclosure of the report is required “to sentence than was recommended in the pre- meet the ends of justice.”91 sentence report, due, in part, to numerous letters written by public officials seeking The Federal Court of Appeals for the Ninth leniency for the former chief. Citizens of the Circuit relied upon the “compelling need to town and the Board of Trustees, apparently meet the ends of justice” standard when it disconcerted by the downward departure, allowed third party disclosure of a presen- expressed a strong interest in learning which tence report to the estate of a deceased man 59 public officials had written letters. The Shreveport, Louisiana. According to the Board of Trustees sent a letter to the judge trial court, Huckaby, his friends, and some asking for public access to the letters written Shreveport officials and community leaders by the town officials. Similarly, a newspaper contended that the reason he (Huckaby) was covering the case moved to secure release of being singled out for prosecution was that the presentence report and the letters relied he was black and that he had raised to a upon by the judge in the downward depar- position of power within the community. ture from the guidelines at sentencing. The The trial judge, apparently dismayed at the newspaper argued that the entire criminal contentions, took the unusual step of filing proceeding was affected with a public inter- the presentence report into the public est and that the public had an especially record. The judge then sentenced Huckaby strong interest in learning what factors had to a 12-month term of imprisonment, a fine persuaded the judge to impose what was of $5,000, and a 1-year term of supervised seen as a very lenient sentence. The Seventh release. The Federal Court of Appeals for Circuit allowed the release of the letters the Fifth Circuit upheld the disclosure, but because the defendant did not challenge required that the portion of the presentence the disclosure of the letters on appeal, but report titled “Offender Characteristics,” the denied disclosure of the presentence report. objections of the defendant, and the proba- The court held that such would not pro- tion officer’s responses to the objection be mote effective functioning of the probation removed from the record. The court held office and that disclosure would constitute a that the compelling necessity of relieving positive hindrance to the probation office’s racial tension, coupled with the need for the performance of its obligation to provide revelation of facts found in the presentence the sentencing court with a comprehensive report that would persuade the public of the analysis of the defendant’s character.96 The defendant’s culpability, justified disclosure. court stated that the public’s interest in the Ninth Circuit case described previously is In summary, it is most likely that all or part of a “different order” than that of the public of every presentence report will be disclosed interest in this case.97 Furthermore, the court to the defendant or his counsel as a result of UPERVISORS S held that news organizations seeking access state statute, court rule, or the exercise of to a presentence report must make a sub- judicial discretion. It is not clear, however, stantial, and specific, showing of need for what, if any, portions of the presentence FFICERS AND

O disclosure before a court may allow public report will be made available to interested inspection of the report.98 third parties. The probation officer should AROLE

/P exercise care in selecting material for inclu- In 1995, the Federal Court of Appeals for sion in a report and making sure any infor- the Fifth Circuit decided a third-party dis- mation included is accurate. Concerning ROBATION P closure case in United States v. Huckaby.99 disclosure, in case of doubt, the better prac- Huckaby, a state district court judge in tice is to give the presentence report to the SSUES FOR

I Louisiana, pleaded guilty to one misde- judge and leave the issue of disclosure to meanor count of failing to file an income him or her. EGAL L tax for the year 1987. During the presen-

THER tence investigation, the probation office The officer should exercise care to avoid O concluded that Huckaby had not filed any tort, and possibly criminal, liability and to federal income tax returns for nearly 12 prevent damage to the interests of justice years. The Internal Revenue Service estimat- he or she is sworn to advance. Probation or IABILITIES AND

L ed the total taxes owed by him for the years parole officers should know that intention-

IVIL 1981 to 1992 at approximately $146,311. ally including inaccurate information in a C The prosecution of this case was highly report with knowledge of its falsity or with 60 publicized in the judge’s hometown of reckless disregard for its truth or falsity CHAPTER could make them liable to the defendant. information.104 When a defendant is sen- In addition to defamation-based torts, other tenced on the basis of a report that is mate- intentional torts are possible. Additionally, rially false or unreliable, that person’s right negligence charges have been brought when to due process is violated.105 The remedy 5 P a defendant could allege that unprofessional usually invoked in such cases is the vacation RESENTENCE care was exercised in report preparation. of the sentence imposed and remand for presentencing. Civil liability, however, is usually not imposed, except if the officer C. Officers Are Generally /P Immune From Civil Liability acted with malice or ill will. REPAROLE When Preparing Presentence Investigation Reports ■■■ I VSIAIN AND NVESTIGATIONS Several state and federal courts of appeal have specifically addressed liability issues II. PREPAROLE against probation officers who have been INVESTIGATION accused of including false and inaccurate presentence reports. The courts, including AND REPORT ISSUES the Federal Courts of Appeal for the Ninth R EPORTS and District of Columbia Circuits, have all he major issue that arises out of prepa- rejected liability claims citing the historic T role investigation concerns the extent quasi-judicial immunity enjoyed by proba- to which prisoners are given access to files tion officers in the preparation of presen- containing information about them. When tence reports.100 Similarly, federal district this issue has been litigated, courts have had courts in New York101 and Pennsylvania,102 to resolve three questions: and the Ohio State Court of Appeals103 have granted officers absolute immunity. As evi- ■ Does any applicable statute or administra- dent in these decisions, most courts have tive rule provide access? held that probation officers have the same ■ Does the prisoner have a right to due immunity (absolute) as judges when prepar- process in connection with the parole ing presentence investigation reports. The release proceedings? only exception is if the falsehoods or inaccu- racies are included due to malice or ill will ■ If there is such a due process right, is file on the part of the probation officer. access encompassed within it?

The Federal Court of Appeals for the Fifth The tradition under which courts operate Circuit, in Maynard v. Havenstrite, 727 F.2d requires them to settle cases on nonconstitu- 439 (5th Cir. 1984), found liability where an tional bases whenever possible. Recent inaccurate presentence report was not shown litigation has granted file access to federal to the plaintiff prior to sentencing. The defen- prisoners, although suits concerning the con- dants, a Chief U.S. Probation Officer and a tours of the statutory right are still possible. federal probation officer, were granted absolute immunity from monetary damages. However, A. Federal Prisoner File Access the appellate court held that, where adminis- The Parole Commission and Reorganization trative remedies were exhausted, the officers Act of 1976106 provides that a federal pris- were not necessarily immune from an action oner shall be given reasonable access to for declaratory and injunctive relief. any report or other document the Parole Commission will use in making its release But the harm to the public interest can be decision. Not all file material need be more substantial. It has long been the rule released; the material that may be withheld that a sentence cannot be based on false 61 is the same kind of information a federal Court held that unless a state law creates a court need not disclose to a defendant in reasonable expectation that the prisoner will connection with sentencing: be paroled, the prisoner’s constitutional “liberty” is not affected by the releasing process ■ Diagnostic opinions that, if made known and no federal due process right applies. to the eligible prisoner, could lead to a seri- The Court said:110 ous disruption of his institutional program; That the state holds out the possibility ■ Any document that reveals sources of of parole provides no more than a mere information obtained upon a promise of hope that the benefit will be obtained confidentiality; or . . . to that extent the general interest ■ Any other information that, if disclosed, asserted here is no more than the inmate’s might result in harm, physical or other- hope that he will not be transferred to wise, to any person. another prison, hope which is not protected by due process . . . . B. State Prisoner File Access Because the Nebraska law provided that the Where there is a state statute, or parole parole board “shall” release a parole-eligible board or other rule, that grants file access to prisoner “unless” certain antirelease factors a state prisoner, the scope of potential litiga- were found to exist,111 the Court held the tion is restricted to issues of rule compliance statute created the necessary reasonable and the applicability of any exceptions that expectation and that due process applied. limit the granting of access. In the absence By grounding its conclusion on the particu- of such a provision, however, file access can lar wording of the Nebraska law, the Court be secured through litigation only by estab- assured that decisions about other states would lishing that the prisoner has a 14th amend- have to be made on a case-by-case basis. ment right to due process in parole release decisionmaking, and that the right includes 2. Sandin v. Conner—The Greenholtz file access. The Supreme Court has addressed Standard Is Rejected

UPERVISORS the first branch of that inquiry. S In the 1995 United States Supreme Court case, Sandin v. Conner, the court gave reasons 1. The Greenholtz Case—Due Process for abandoning the “mandatory language” Applies?

FFICERS AND 112

O standard for prisoner due process cases. The 14th amendment bars states from Sandin, a prison case, held that the courts

AROLE depriving a person of “liberty” without due

/P had “impermissibly shifted the focus of the process of law. What does “liberty” mean liberty interest inquiry from one based on in the parole release context? When the the nature of the deprivation to one based ROBATION P Supreme Court took up that question in on language of a particular regulation.”113 1979, the federal courts of appeal were sharply This shift in focus led to prisoners searching divided. The Federal Courts of Appeals for SSUES FOR

I state and federal statutes and regulations the Third, Fifth, Sixth, Ninth, and Tenth upon which liberty interests claims could EGAL 107 L Circuits had held that “liberty” was not be made. The Court then held that liberty

THER involved and that due process rights were interest principles established in earlier cases, O therefore inapplicable. But the Second, Fourth, such as Wolff v. McDonnell, 418 U.S. 539, 108 Seventh, and District of Columbia Circuits should be relied upon in establishing due had reached the opposite conclusion. This process rights, rather than the evolving IABILITIES AND

L controversy was settled in Greenholtz. “mandatory language” standard used in

IVIL Greenholtz. Under Wolff, the proper standard C In Greenholtz v. Inmates of the Nebraska Penal is the nature of the deprivation and must 62 and Correctional Complex,109 the Supreme CHAPTER balance the needs of prison management the Fourth Circuit stated “we discern no con- concerns with the prisoner’s liberty in deter- stitutional requirement that each (state) pris- mining the amount of liberty due. oner receive a personal hearing, have access to his files, or be entitled to call witnesses in his 5 P

Thus the standard of liberty interest leading behalf to appear before the Board. These are RESENTENCE to due process set in Greenholtz (holding that all matters which are better left to the discre- protected liberty interest may be created by tion of the parole authorities.”117 the wording of state law, rules, or regulations) /P

was rejected, indicating a return to the old But in Walker v. Prisoner Review Board (after REPAROLE Wolff standard. Since access to parole files Greenholtz),118 where the State Board of involves prisoners, Conner would likely apply Parole acted in violation of the state Rules I

in prisoner access to file cases in instances Governing Parole, failure to allow inmate AND NVESTIGATIONS where the wording of state law appears to access to his file was ruled an infringement create a liberty interest that is to be protected of due process. by due process. ■■■ 3. Does Due Process Include Access to File? R Although the 5th and 14th amendments refer III. RIGHT TO EPORTS to “due process of law,” the Constitution nowhere defines that term or gives it sub- NOTICE OF A PAROLE stance. A short definition of due process is HEARING “fundamental fairness.” But what does that mean? In modern litigation, due process has f the prisoner under Conner can establish been treated as a flexible concept that derives a liberty interest in parole, notice its meaning from the nature and weight of I becomes a fundamental procedural right. the competing rights and interests at stake in Even without statutory provision for notice, a particular proceeding. In the first parole courts could be expected to require it. The case it fully considered, the Supreme Court nature of the requirement would be func- applied such a balancing analysis to deter- tional: time to obtain evidence, inspect the mine parolees’ rights in revocation cases.114 file, and challenge adverse evidence—as permitted within the particular jurisdiction. Lower courts took this as a signal (erro- neously, as we now know) that due process Again, if the prisoner can establish a liberty should apply—to other parole proceed- interest under Conner, notice would be ings—and began the weighing process to meaningless without the right to present evi- give content to the concept in a variety of dence at the hearing. However, such a right contexts. Although commentators concluded does not necessarily require personal appear- that due process embraced file access,115 the ance.119 Functional input into the decision- courts were not so willing to do so. Thus, making process would likely satisfy the court. in Williams v. Ward,116 the Federal Court of Appeals for the Second Circuit held (before ■■■ Greenholtz) that while the interest of a state parole applicant in the parole release decision was subject to some due process protec- SUMMARY tions, the disclosure of the parole file was not constitutionally required. his chapter examines probation presen- T tence reports and preparole investiga- Likewise in Franklin v. Shields (also before tion reports. In general, the content of the Greenholtz), the Federal Court of Appeals for probation presentence report is open ended, 63 guided by the general rules of good faith, 9. Ind. Code Ann. Sec. 35-38-1-12, 13 (1999). reasonableness, and germaneness. The trend across jurisdictions is toward disclosure of 10. La. Code Crim. Proc. art. 875, 877 (2000). the report’s content, at least to legal counsel; however, most jurisdictions do not recognize 11. Rule 4-341. a constitutionally based right to disclosure. 12. Minn. Stat. Sec. 609.115 (1999); D. Minn. Generally, state statute law or court rulings LR 83.10. regulate disclosure. 13. Miss. Code Ann. Sec. 47-7-9; URCCC Rule The section on parole focuses on the effects 11.02 (2000). of the Greenholtz and Sandin cases. The main holding in Greenholtz is that due process does 14. R.S. Mo. Sec. 217.760, .762; Sec. 557.062. not apply to parole release proceedings unless a state law creates an expectation that parole 15. Mont. Code Ann. Sec. 46-18-111, 112, 113. will be granted, thereby establishing a liberty interest. This mandatory language standard 16. R.R.S. Neb. Sec. 29-2261 (2000). has come into question, however, with the more recently reestablished due process stan- 17. N.J. Stat. Sec. 2c:44-6 (2000). dard in Sandin v. Conner. Nevertheless, due process protections must generally come 18. N.Y. C.L.S. C.P.L. Sec. 390.20, .30, .40, .50 from state statute and/or administrative regu- (1999). lations and are not generated by the United States Constitution. Thus, access to the pre- 19. N.C. Gen. Stat. Sec. 15A-1332, 1333. parole reports and other files is dependent on 20. N.D.R. Crim. P., Rule 32. statute or application of the balancing test weighing the needs of prison management 21. O.R.S. Sec. 137.077, .079 (1997). versus the nature of inmate deprivation. 22. 34 L.P.R.A. App. 2 R. 162.1 (1997). Notes UPERVISORS S 23. 28 V.S.A. Sec. 204 (2000). 1. Williams v. New York, 337 U.S. 241 (1949).

24. Va. Code Ann. Sec. 204 (2000). 2. U.S.C.S. Fed. R. Crim. P. Rule 32 (2000). FFICERS AND O 25. Wis. Stat. Sec. 972.15 (1999). 3. For three different views on the impact of AROLE

/P presentence reports in the sentencing process, see 26. State v. McKinney, 7 Or. App. 248, 489 P.2d J. Hogarth, Sentencing Project: An Experiment (1971); State v. Woolery, 16 Or. App. 180, 517

ROBATION in the Use of Short Form PreSentence Reports for P P.2d 1212 (1974); People v. Books, 95 Mich. Adult Misdemeanants (1971); R. Carter and L. App. 500, 291 N.W.2d 662 (1980); State v. Wilkins, Some Factors in Sentencing Policy, 1967 Mason, 107 Idaho 706, 692 P.2d 350 (1984); SSUES FOR I J. Crim. L. C. & P. S. 503. State v. Flynn, 675 S.W.2d 494 (Tenn. Crim. EGAL

L App. 1984); State v. Morris, 750 S.W.2d 746 4. United States v. Tucker, 404 U.S. 443 (1972). (Tenn. Crim. App. 1987); O’Dell v. Common- THER O 5. C.R.S. 16-11-102 (1999). wealth, 234 Va. 672, 364 S.E.2d 491, cert. denied, 488 U.S. 871 (1988); State v. Eubank, 6. D.C. Ct. R. Ann. Rule 32 (2000). 114 Idaho 635, 759 P.2d 926 (Ct. App. 1988); IABILITIES AND

L United States v. Fernandez-Vidana, 857 F.2d 673 7. D.C. SCR-Crim. Rule 32, 32.2 (2000). IVIL (9th Cir. 1988); United States v. Kerr, 876 F.2d C 1440, 1445 (9th Cir. 1989); United States v. 64 8. Idaho Code Sec. 20-220 (1999). Petty, 982 F.2d 673 (9th Cir. 1993); United CHAPTER States v. Rocha, 1 F.3d 950 (10th Cir. 1993); 42. United States v. Piccard, 464 F.2d 215 United States v. Sustaita, 1 F.3d 950 (9th Cir. (1st Cir. 1972). 1994); United States v. Anaya, 32 F.3d 308 (7th Cir. 1994). 43. Levin v. State, 348 So. 2d 1189 (Fla. 4th 5 P

D.C.A. 1977); McClendon v. State, 589 So. 2d RESENTENCE 27. Williams v. New York, 337 U.S. 241, 247 352 (Fla. App. 1991). (1949). 44. Colo. Rev. Stat. 16-11-102 (1999); Ga. 28. Farrow v. United States, 580 F.2d 1339 Code Ann. /P REPAROLE (9th Cir. 1978). 45. Ala. R. Crim. P. Rule 26.5 (1998).

29. United States v. Johnson, United States v. I VSIAIN AND NVESTIGATIONS Smith, 935 F.2d 47 (4th Cir. 1991); United 46. Alaska R. Crim. P. Rule 32.1 (2000). States v. Jackson, 886 F.2d 838, 844 (7th Cir. 1989). 47. Ariz. R. Crim. P. Rule 26.6 (2000).

30. United States v. Govan, 152 F.3d 1088 (9th 48. Colo. Rev. Stat. 16-11-102 (1999). Cir. 1998). R

49. Conn. R. Ct. Rule 9 (2000). EPORTS 31. The presentence report in Williams v. New 50. Del. R. Ann. Rule 32 (1999). York contained such data; see also United States v. Graves, 785 F.2d 870 (10th Cir. 1986). 51. D.C. Ct. R. Ann. R. 32 (2000).

32. Schooler v. Commonwealth, 628 S.W.2d 52. Fla. R. Ct. Serv. Rule 88.1 (2000). 885 (Ky. Ct. App. 1981). 53. Michie’s Haw. Rev. Stat. Ann. HRS Sec. 33. A.L.M. R. Crim. P. Rule 28 (1999). 706-604 (1999).

34. Mont. Code Ann. Sec. 46-18-111, 112, 113 54. Idaho Code Sec. 20-220 (1999); Idaho Ct. (1999). R. Ann. Rule 32 (1999).

35. State v. McClendon, 611 P.2d 728 (Utah 55. Ill. Comp. Stat. Ann. Sec. 730 ILCS 5/5-3-4 1980). (2000).

36. United States v. Calandra, 414 U.S. 338 56. Ind. Code Ann. Sec. 35-38-1-12 (1999). (1974). 57. Kan. Stat. Ann. Sec. 21-4714, Sec. 21-4605 37. Pennsylvania Board of Probation and Parole (1999). v. Scott, 118 S. Ct. 2014 (1998). 58. La. Code Crim. Proc. art. 877 (2000). 38. U.S.C.S. Fed. R. Crim. Proc. Rule 32 (2000). 59. Me. R. Ct. Rule 132 (1999).

39. United States v. Martinello, 556 F.2d 1215 60. Md. R. Ann. Rule 4-341 (1999). (5th Cir. 1977). 61. Mass. R. Crim. Proc. Rule 28 (1999). 40. United States v. Long, 411 F. Supp. 1203 (E.D. Mich. 1976). 62. Mich. Stat. Ann. Sec. 28.1144 (1999).

41. United States v. Hodges, 547 F.2d 951 63. Minn. Stat. LR 83.10 (1999). (5th Cir. 1977). 65 64. Mont. Code Ann. Sec. 46-18-113 (1999). 83. La. C. Cr. P. art. 877 (2000).

65. Nev. Rev. Stat. Ann. Sec. 176.156 (2000). 84. Mont. Code Ann. Sec. 46-18-113 (1999).

66. N.H. Rev. Stat. Ann. Sec. 651:4 (1999). 85. HRS Sec. 706-601 (1999).

67. N.Y. Consol. Law, Crim. Proc. Law Sec. 86. Kan. Stat. Ann. Sec. 21-4605 (1999). 390.50 (1999). 87. N.J. Stat. Sec. 2C:44-6 (2000). 68. N.C. Gen. Stat. Sec. 15A-1333 (1999). 88. 711 F.2d 1164; 722 F.2d 1073 (1983). 69. Ohio Rev. Code Ann. Sec. 2951.03 (Anderson 1999). 89. 711 F.2d 1164, 1173.

70. Or. Rev. Stat. Sec. 137.077 (1997). 90. Id. at 1175.

71. Pa. Stat. Sec. 9734 (1999). 91. Id.

72. P.R. Laws Ann. tit. 34, Rule 162.1 (1997). 92. United States v. Schlette, 842 F.2d 1574 (1988). 73. S.D. Codified Laws Sec. 23A-27-7 (2000). 93. Id. at 1584. 74. Tenn. Code Ann. Sec. 40-35-208 (1999). 94. Id. at 1582. 75. Utah Code Ann. Sec. 76-3-404 (1999). 95. 879 F.2d 224 (1989). 76. V.I. Ct. Rules Ann. Rule 32.0.1 (1999). 96. Id. at 229. 77. Va. Code Sec. 19.2-299 (1999). 97. Id. at 240. 78. Wash. R. Ct. Ann. Rule 9 (1999). UPERVISORS

S 98. Id. 79. Wis. Stat. Sec. 972.15 (1999). 99. 43 F.3d 135 (1995).

FFICERS AND 80. Ga: Benefield v. State, 140 Ga. App. 727, O 232 S.E.2d 89 (1976); Iowa: State v. Randall, 100. See Demoran v. Witt, 777 F.2d 1402 (9th

AROLE 258 N.W.2d 359 (Iowa 1977); Md: Haynes v. Cir. 1985); Turner v. Barry, 856 F.2d 1539 (D.C. /P State, 19 Md. App. 428, 311 A.2d 822 (1973); Cir. 1988). Minn: County of Sherburne v. Schoen, 306 ROBATION P Minn. 171, 236 N.W.2d 592 (1975); Neb: State 101. Sheldon v. McCarthy, 699 F. Supp. 412 v. Richter, 191 Neb. 34, 214 N.W.2d 16 (1973); (U.S.D.N.Y. 1988).

SSUES FOR Okla: Lucker v. State, 552 P.2d 711 (Okla. Crim. I 102. Bieros v. Nicola, 839 F. Supp. 322 (U.S.D. App. 1976); S.D.: State v. Robinson, 87 S.D. EGAL Pa. 1993). L 375, 209 N.W.2d 374 (1973); State v. Hanson,

THER 88 S.D. 48, 215 N.W.2d 130 (1974); Texas: Tex.

O 103. Clark v. Eskridge, 602 N.E.2d 1288 Code Crim. Proc. art. 42.12 (2000); Vermont: (1991). U.S. Dist. Ct. (Vt.) L. Cr. R. 57.1 (1999). 104. Townsend v. Burke, 334 U.S. 736 (1948). IABILITIES AND

L 81. United States v. Huckaby, 43 F.3d 135

IVIL (1995). 105. United States v. Lasky, 592 F. 2d 560 (9th C Cir. 1979); Moore v. United States, 571 F.2d 82. Ariz. R. Ct. Ann. Rule 26.6 (2000). 66 179 (3d Cir. 1978). CHAPTER 106. Pub. L. No. 94233, 90 Stat. 219, codified at 109. Greenholtz v. Inmates of the Nebraska Penal 18 U.S.C. 4201-4218 (1976). and Correctional Complex, 442 U.S. 1 (1979).

107. See Mosley v. Ashby, 459 F.2d 477 (3d Cir. 110. Id. at 11. 5 P

1972); Madden v. New Jersey State Parole Bd., RESENTENCE 438 F.2d 1189 (3d Cir. 1971); Cruz v. Skelton, 111. Neb. Rev. Stat. 831, 114 (1) (1971). 543 F.2d 86 (5th Cir. 1976); Brown v. Lundgren, 528 F.2d 1050 (5th Cir.), cert. denied, 112. See Cripe, Clair A. (1997). Legal Aspects of Corrections Management. Gaithersburg, /P

429 U.S. 917 (1976); Scarpa v. United States REPAROLE Bd. of Parole, 477 F.2d 278 (5th Cir.) (en banc), Maryland: Aspen Publishers. vacated as moot, 414 U.S. 809 (1973); Scott v. 113. 115 S. Ct. 2293 (1995). I

Kentucky Parole Bd., No. 741899 (6th Cir. Jan. AND NVESTIGATIONS 15, 1975), remanded for consideration of mootness, 114. Morrissey v. Brewer, 408 U.S. 471 (1972). 429 U.S. 60 (1976), reaffirmed sub nom. Bell v. Kentucky Parole Bd., 556 F.2d 805 (6th Cir. 115. Note, Prisoners Access to Parole Files: A Due 1977), cert. denied, 434 U.S. 960 (1978); Process Analysis, 47 Fordham L.R. 260 (1978). Dorado v. Kerr, 454 F.2d 892 (9th Cir. 1972);

Schawartzberg v. United States Bd. of Parole, R 116. 556 F.2d 1143 (2nd Cir. 1977), cert. EPORTS 399 F.2d 297 (10th Cir. 1968). dismissed, 434 U.S. 944 (1978).

108. See United States ex rel. Johnson v. 117. 469 F.2d 8 (4th Cir.), aff’d in part and rev’d Chairman, New York State Bd. of Parole, 500 in part en banc, 569 F.2d 784 at 800 (1977), F.2d 925 (2nd Cir. 1974), vacated as moot, 419 cert. denied, 435 U.S. 13 (1978). U.S. 1015 (1975); Coralluzzo v. New York State Parole Bd., 566 F.2d 375 (2nd Cir. 1977), cert. 118. Walker v. Prisoner Review Board, 594 F. dismissed as improvidently granted, 435 U.S. 912 Supp. 556 (U.S.D. Ill., 1984). See also, Braxton (1978); Bradford v. Weinstein, 519 F.2d 728 v. Josey, 567 F. Supp. 1479 (D. Md. 1983), (4th Cir. 1974), vacated as moot, 423 U.S. 147 contra, and Stanley v. Dale, 298 S.E.2d 225 (1975); Franklin v. Shields, 569 F.2d 784 (4th (W. Va. 1982) (prisoner entitled to see file unless Cir. 1977) (en banc), cert. denied, 435 U.S. 1003 security considerations dictate otherwise). (1978); United States ex rel. Richerson v. Wolff, 525 F.2d 797 (7th Cir. 1975); Childs v. United 119. See Ybarra v. Dermitt, 104 Idaho 150, 657, States Bd. of Parole, 511 F.2d 1270 (D.C. Cir. P.2d 14 (1983) (no right to confront authors of 1974). letters contained in parolee’s presentence report).

CHAPTER 6 Liability of Parole Board Members for Release or Nonrelease

INTRODUCTION

I. THE PAROLE RELEASE HEARING: INMATE GENERALLY HAS NO DUE PROCESS RIGHTS

A. No Constitutional Right to Counsel 1. Federal 2. State B. Release Criteria 1. Federal 2. State C. Explanation for Denial of Parole 1. Federal 2. State

II. LIABILITY OF PAROLE BOARD MEMBERS FOR CRIMES COMMITTED BY RELEASED OFFENDERS

A. The General Rule Is No Liability B. Legislative Remedy If There Is Liability Exposure

III. LIABILITY OF PAROLE BOARD TO INMATES FOR VIOLATION OF RIGHTS

A. Substantive Rights

B. Procedural Rights 6 CHAPTER

SUMMARY

NOTES

INTRODUCTION I. THE PAROLE CHAPTER RELEASE HEARING: he issues of parole board liability for 6 release or nonrelease, liability of parole T INMATE GENERALLY L board members to the general public for OF IABILITY crimes committed by parolees, and liability HAS NO DUE for alleged violations of inmates’ rights are PROCESS RIGHTS addressed in this chapter. These topics are of P AROLE significant interest to prospective parolees A. No Constitutional Right to

and the public and are also fertile areas of B litigation. Counsel OARD The general rule on representation is that M

The United States Supreme Court case there is no right to either retained or FOR EMBERS Greenholtz v. Nebraska Penal Inmates,1 decided appointed counsel as a matter of constitu- in 1979, held that prison inmates are not tional law.2 Any jurisdiction, state or federal, entitled to due process rights under the may allow representation by law or agency R

Constitution in parole release decisions. The policy, but most do not. Several states are OR ELEASE case stemmed from a class action against the experimenting with retained counsel at the Nebraska Parole Board alleging denial of hearing, and most allow access to an attor- 3 procedural due process. Nebraska’s discre- ney in preparation for a hearing. N tionary parole procedures prescribed a two- ONRELEASE stage parole hearing, including allowing 1. Federal inmates to present evidence, call witnesses, The right of the federal prisoner to retain be represented by counsel, and be notified, counsel to accompany him or her to the in writing, of the reasons if parole was parole release hearing has not been at issue denied. Given these administrative proce- since the enactment of the Parole Commission dures, the Court held that while the mere and Reorganization Act of 1976.4 The act possibility of discretionary parole release provides that a prisoner, prior to parole deter- does not carry with it due process rights mination, may consult with a representative under the Constitution, the state statute was who qualifies under the rules and regulations worded in such a way that it created a liberty of the Commission. Attorneys are not to be interest entitling inmates to due process. The excluded as a class. Caution should be exer- Court in this case laid down three important cised, however, because the Sentencing constitutional principles on the granting or Reform Act of 1984 abolished parole eligi- nongranting of parole: bility for federal offenders who commit offenses on or after November 1, 1987, and ■ There is no constitutional or inherent abolished the U.S. Parole Commission.5 right of a convicted person to be condi- However, the Judicial Improvements and tionally released before the expiration of a Parole Commission Phaseout Acts extended valid sentence. Simply stated, parole is a the Parole Commission’s jurisdiction until privilege and not a right. November 1, 2002.6 After this date, it is ■ A state may establish a parole system, but expected that new regulations will be pub- it has no duty to do so. lished, but that the regulations will provide ■ There is a crucial distinction between similar rights of consultation. being deprived of a liberty one has, as when one is already on parole and it is being revoked, and being denied a conditional liberty one desires, as when an inmate in prison seeks to be paroled. 71 2. State issue was brought to the courts in the past, The question of whether a state inmate the prospective parolee was usually in a state should be afforded the right to counsel that did not require publication of criteria. remains basically a state question. The role When the inmate brought the issue before a of counsel in most states is restricted to court, the allegations were based on a due advising the prisoner before the hearing, or process claim. making oral or written arguments to the Inmates are usually not successful in claim- parole board after the hearing.7 In addition, ing that due process mandates the criteria courts that have considered the issue on con- used by an authority in making its release stitutional grounds have decided there is no decision be published. For example, the constitutional right to assistance of counsel Federal Court of Appeals for the Fifth at the release hearing.8 Circuit held the parole board’s standards for Federal Circuit Courts of Appeal have held deciding parole applications are of judicial that the Constitution does not require the concern only where arbitrary action results appointment of counsel at a parole release in the denial of a constitutionally protected hearing,9 does not permit counsel to attend liberty interest, and the expectation of 16 parole hearings,10 and does not require the release on parole is not such an interest. assistance of counsel at a parole application The Federal Court of Appeals for the Second proceeding.11 Circuit held “unless and until” the statement of specific facts and reasons for denial of B. Release Criteria parole given to prisoners prove inadequate to protect inmates in the parole decision- 1. Federal making process, the court would not compel Federal statute sets out the criteria that the the parole board to reveal its release criteria.17 Parole Commission uses in determining whether to release the prospective parolee.12 Although Federal Courts of Appeals have Publication of such criteria provides a guide determined that a federal constitutional to the Commission and some assurance that right does not apply to the publishing of UPERVISORS S decisions will not be arbitrary.13 Such criteria state parole release criteria, this does not pre- and the implementing Parole Commission vent a court from finding otherwise under a guidelines are a step toward confining the state constitution. The basic principle is that

FFICERS AND a state is not restricted in extending rights to O discretion of the paroling authority without stripping it of its discretionary authority.14 its citizens by the rights granted by the fed- AROLE eral Constitution. Some states have been /P Liability in this area focuses on the discre- providing what the federal courts have tionary powers of the parole board. The declined to require. ROBATION P parole board cannot be held liable under the 18 Federal Tort Claims Act (FTCA) for a deci- Payton v. United States suggests several bases for liability. In this case, probation officers SSUES FOR

I sion made in exercise of its discretionary function. However, FTCA liability may exist were found to have a duty to furnish the EGAL L when required steps of the decisionmaking parole board information concerning prison-

THER process are ignored.15 ers as well as, wherever not incompatible O with public interest, their views and recom- 2. State mendations with respect to parole disposition. Parole boards may have a duty to The question as to whether a state prisoner IABILITIES AND

L acquire and read pertinent reports that is entitled to know what criteria the paroling

IVIL would inform board members of inmates’ C authority uses in making its determination violent propensities. 72 is basically an issue of state law. When the CHAPTER United States v. Irving19 found parole board their actions. An administrative procedures members absolutely immune from liability act is a codification by a legislature of a set claims under Section 1983 of 42 U.S. Code. of generic rules in these areas. However, the court noted that the plaintiff’s 6 L claims of systematic racial discrimination 1. Federal OF IABILITY against black inmates with regard to parole Section 555(e) of the federal Administrative releases were sufficient for declaratory relief. Procedures Act (APA) requires that notice be Impermissible discrimination on the part of given upon denial of an application before P AROLE the board is actionable, therefore, despite an administrative agency. In a 1974 case, immunity principles. Liability for abuse of

the Seventh Circuit found the APA applica- B discretion may require a showing of bad ble to the United States Board of Parole and OARD faith or action outside the scope of board required the Board to give the appellant a authority.20 For example, board failure M statement of reasons for refusing his applica- FOR EMBERS to consider, in the context of the Youth tion for parole.26 The traditional view had Corrections Act, the plaintiff’s response to been that the APA was not applicable to the rehabilitation might reasonably constitute Board of Parole.

21 R

abuse of discretion. OR ELEASE The relevance of the APA at the federal level Where due process is required by the finding has become of interest only since the cre- of a liberty interest in parole, one court ruled ation of the Parole Commission. Sections N that due process required a statement of rea- 4206 and 4208(g) of Title 18, U.S. Code, ONRELEASE sons for parole denial sufficient to enable a provide that if parole is denied, a personal reviewing body to determine whether the conference to explain the reasons for denial parole had been denied for an impermissible shall be held at the conclusion of the pro- 22 reason. A West Virginia court specified that ceedings, if feasible. Furthermore, Section a person denied parole was entitled to more 4206(b) provides that if parole is denied, 23 than “mechanistic” written reasons. But use notice of that determination shall state with of a checklist to inform an inmate of reasons particularity the reasons for such denial for parole denial was deemed not improper within 21 days of the parole hearing. in another case.24 Johnson v. Rhode Island Parole Board Members27 C. Explanation for Denial of held that parole board members were enti- Parole tled to absolute immunity from liability for damages in a 42 U.S. Code Section 1983 Since there is no general federal constitu- action in thrice denying an inmate’s parole tional right to due process in parole release, application. The case stemmed from a Rhode there is no general constitutional right either Island inmate who brought a 42 U.S. Code to be given the reason for parole denial. This Section 1983 action against the Rhode Island once was an area of considerable litigation; Parole Board seeking monetary damages for hence, it deserves discussion. As a practical an alleged violation of his liberty interests matter, this is hardly an issue because sur- and due process rights. veys show that 47 jurisdictions routinely gave written explanations.25 Prisoner com- 2. State plaints in some cases were based on a due process theory and on an administrative Where the interpretation of state statutes is procedures act. in issue, federal rulings on related federal statutes have some influence but no direct Administrative law is the body of law that precedential value. Moreover, unlike the fed- governs the powers, procedures, and judicial eral Administrative Procedures Act, some reviewability of administrative agencies and state laws have a specific exception for parole 73 decisions. Not all states have such laws. It is been released by the board, the injury would best to check with local authorities for hold- not have occurred. ings pertinent to that jurisdiction. Generally, however, parole board members Whether a statement of reasons for denial is are entitled to absolute immunity when required is not a totally independent issue but, engaged in actions within the proper scope rather, is dependent on one of three factors: of official duties. The courts have held that since parole board officials perform func- ■ State court interpretation of, or legislative tions comparable to those of a judge, in inclusion or exclusion within, a state deciding to grant, deny, or revoke parole, administrative procedure act; they are entitled to absolute immunity. ■ State court interpretation of the state’s Case law in this area suggests most courts constitution concerning due process, or; will honor immunity principles for parole ■ The policy of an administrative agency. board members but find some limited liability or an argument for potential limited In states without a state Administrative liability. Judicial analyses focus on discretion. Procedures Act, the presumption is that there Where a parole board is seen by a court to is no right to an explanation of a parole omit a required step in its discretionary decision. However, as mentioned above, the decisionmaking process or to abuse discre- majority of states provided oral or written tion, board members may jeopardize claims explanations of the parole decision anyway. to immunity.

■■■ A. The General Rule Is No Liability II. LIABILITY OF In Santangelo v. State,29 an action for negli- PAROLE BOARD gent release was brought in the New York Court of Claims against the state by a woman who was raped by a released inmate. The UPERVISORS MEMBERS FOR S court conceded that there is a valid public CRIMES COMMITTED interest in protecting society from the depre- dations of known dangerous individuals, but

FFICERS AND BY RELEASED O added that there also exists a recognized pub- OFFENDERS lic interest in rehabilitating and reforming AROLE /P offenders. The court said that the Temporary arole board liability for the release of Release Committee had the duty to exercise

ROBATION an offender on parole who subsequently

P P reasonable care to avoid the release of a pris- commits an offense is an important legal oner where to do so would not be found just issue that has drawn the attention of the because subsequent events proved a release SSUES FOR I courts and will continue to be litigated in decision wrong. In the Santangelo case, the

EGAL the future. The question centers on possible

L record reflected that the release decision did liability of parole board members to victims not entail a very thorough examination into THER

O or their families for crimes, particularly of a the releasee’s background or character. The violent and predatory nature, committed by inmate was never interviewed personally inmates released on parole.28 The public rea- by the committee and appeared before the sons that since public protection is one pur-

IABILITIES AND committee only to have the conditions of L pose of parole, the parole board should be release explained to him. His parole officer IVIL C held liable if a parolee injures a member of was not consulted, even though it was the the public because, if the parolee had not 74 officer’s recommendation that the inmate CHAPTER serve additional time. Moreover, no psychi- was not presumed from the fact of the atric or psychological reports were considered. assault. No liability was imposed.

Despite these indications of lack of due care, Note that in these two cases, the courts did 6 L

the court dismissed the plaintiff’s claim not say that the officers could never be held OF IABILITY because there was not sufficient evidence liable for what they did. On the contrary, before it to determine if the committee’s the liability claim in Santangelo was the decision would have been any different had result of failure by the plaintiff to prove that P a more thorough examination been under- without negligence the resulting decision by AROLE taken. (Before negligence liability is assessed, the agency would have been different, and, B

it is usually required that the negligence be in the Welch case, it was the failure of the OARD proven to be the cause in fact of the injury. plaintiff to bring forth evidence sufficient to

Here, it could not be said that “but for” prove negligence on the part of the officers. M MESFOR EMBERS the failure to take these diagnostic steps, the harm could have been prevented.) Thus, In Thompson v. County of Alameda,31 decided the plaintiff failed to establish that the com- by the California Supreme Court in 1980, mittee knew or should have known of the a 5-year-old boy was sexually assaulted and R LAEOR ELEASE dangers posed by its decision to release. killed by a delinquent within 24 hours after No liability was assessed. the delinquent’s release by the county probation department. The parents filed action N 30 Similarly, in Welch v. State, action was against Alameda County for reckless, wan- ONRELEASE brought against the State of New York ton, and grossly negligent conduct in the claiming damages caused by the state’s negli- following: (1) releasing the juvenile delin- gence in paroling Freddie Lee Davis, who quent to the community; (2) failing to give had a history of violent antisocial and notice of the delinquent’s propensities to the deviant behavior and who had been incar- delinquent’s mother, the police, and the par- cerated for viciously attacking and raping ents of the young children in the neighbor- young women. It was further alleged that hood, and notice of the fact and place of the state was negligent in supervising Davis release to the police and such parents; (3) as a parolee, thus causing the plaintiff per- failing to exercise reasonable care through manent injuries when the parolee struck her its agent, the delinquent’s mother, after his with a piece of lumber and threw her in a release; and (4) failing to use reasonable care river. The trial court dismissed the case and in the selection of its agent to undertake the the plaintiff appealed. The state appellate delinquent’s custody. Basing its decision pri- court affirmed the dismissal, stating that marily on the California law that provides the nature and extent of the state’s duty immunity from liability for discretionary of supervision, as well as the question of acts by government employees and immuni- whether the released prisoner’s actions were ty in determining parole or parole condi- foreseeable, can be put at issue only if the tions, the trial court dismissed the case and claim sets forth adequate factual allegations the parents appealed. The appellate court supportive of the charge of negligence on found no liability because (1) the plaintiffs the part of the state. In this case, the terms alleged no special or continuing relationship and conditions of the parolee’s release were between themselves and the defendant coun- not set forth, nor were there any factual alle- ty and (2) the decedent had not been a fore- gations as to the manner in which the state seeable or readily identifiable target of the was negligent. The negligence of the state juvenile offender’s threats.

75 In summary, the court in Thompson ruled:32 absolute immunity defense, but this was rejected by the Arizona Supreme Court. The Whenever a potentially dangerous court held that parole board members enjoy offender is released and thereafter com- only qualified immunity in the exercise of mits a crime, the possibility of the their discretionary functions. Relying on commission of that crime is statistical- state law, the court said that the Board had ly foreseeable. Yet the Legislature has narrowed its duty in the case from one owed concluded that the benefits to society to the general public (for which there is no from rehabilitative release programs liability) to one owed to individuals (for mandate their continuance. Within which there may be liability) by assuming this context and for policy reasons the parole supervision over, or taking charge duty to warn depends upon and arises of, a person having dangerous tendencies. from the existence of a prior threat to Liability was also based on the finding that a specific identifiable victim or group the release decision was reckless or grossly of victims . . . [citations omitted]. In or clearly negligent. those instances in which the released offender poses a predictable threat of In jurisdictions like Arizona that reject the harm to a named or readily identifiable absolute immunity rule and therefore allow victim or group of victims who can liability, the central issue becomes when are he effectively warned of the danger, a parole board members reckless or grossly releasing agent may well be liable for or clearly negligent in granting a parole failure to warn such persons. release?35 There is no definitive answer; however, courts tend to use the standards of duty In Larson v. Darnell,33 a juvenile parolee and foreseeability—meaning whether there raped and murdered a 12-year-old girl. The was a legal duty of care imposed on the court found immunity for the board even if parole board members and whether, given its decisions over whom to parole, when to the facts in the case, the danger could have parole, and where to place the parolee were been foreseen. One writer points out that a performed negligently, willfully, and wan- decision to release would be grossly negli- UPERVISORS

S tonly. Although the court noted that evidence gent if the entire record of the prisoner indi- of corrupt or malicious motives or abuse of cated violent tendencies (as in Grimm), and power might have brought about a different there is no reasonable basis to believe that

FFICERS AND result, the decision reflects a strong public 36

O the prisoner has changed. policy interest in protecting discretionary

AROLE decisions. Larson draws the boundaries of Payton v. United States,37 decided by the /P responsibility between board supervisory Federal Court of Appeals for the Fifth decisions and officers administering board Circuit held, in 1981, that the United States ROBATION P supervisory decisions. Parole Commission could be sued for negligence because of the release of a federal By contrast, in the following cases the SSUES FOR prisoner who then kidnapped, raped, and I potential liability recognized in the above murdered three women. The suit, brought EGAL L cases was proved; hence, liability ensued. under the Federal Tort Claims Act, charged

THER that the Commission was negligent when O In Grimm v. Arizona Board of Pardons and it released a federal prisoner who had been 34 Paroles, the parole board and its members repeatedly diagnosed as a dangerous, homi- were sued for negligent release of Mitchell cidal psychotic while in prison, and who

IABILITIES AND Blazak, a diagnosed dangerous social psy- L had been sentenced to 20 years in prison chopath who had served one-third of a sen- IVIL for severely beating a woman. Despite these C tence for armed robbery and assault with warning signals, the prisoner’s sentence was 76 intent to kill. The parole board invoked the CHAPTER reduced to 10 years, and he was later grant- cial immunity exception to the FTCA. The ed parole in the custody of a priest. He later court, speculating as to the course of argu- killed three women. The court said that the ments not made, also noted that the Board release of a prisoner in total disregard of his could have provided for continued supervi- 6 L known propensities for repetitive brutal sion of the parolee and that failure to do so OF IABILITY behavior was not an exercise of discretion, may have been an abuse of discretion. but, instead, was an act completely outside clear statutory limitations. The Federal Court of Appeals for the Sixth P Circuit held in Janan v. Trammell,39 that AROLE The court distinguished between the Commis- members of the Tennessee State Parole B

sion’s role as the promulgator of paroling Board enjoyed absolute immunity from a OARD guidelines and its responsibilities in applying 42 U.S. Code Section 1983 and 1985 suit the guidelines to individual cases. The court alleging gross negligence in the release of an M MESFOR EMBERS of appeals said that the government would inmate on parole. The parolee, previously have been immune if the damage suit had convicted of armed robbery and grand larce- attacked the government guidelines them- ny, had been on his second term of parole selves, because the dispute would then have for less than 2 months when he accompa- R LAEOR ELEASE concerned the selection of the appropriate nied a prison escapee to Florida and com- release policy, which by law has been committed murder. The family of the murder mitted to agency discretion. In this case, how- victim filed a Section 1983 action claiming N ever, the suit charged that the guidelines for that the parole board’s action deprived the ONRELEASE parole were not properly applied to this par- victim of his life without due process of law. ticular parolee. This implies that the govern- The court held, however, that the family of ment enjoys immunity for drafting parole the victim did not claim that the parole guidelines, but not for their negligent appli- board, or the defendants, had any specific cation. The court concluded by saying:38 responsibility to the parolee, nor did they claim that the defendants should have As government grows and the potential known that the parolee’s release or subse- for harm by its negligence increases, quent possible parole violations would the need to compensate individuals endanger the victim. For these reasons, the bearing the full burden of that negli- court found the defendant’s actions were gence also increases. . . . Suits under causally remote from the murder. the Federal Tort Claims Act provide a fair and efficient means to distribute The Federal Court of Appeals for the Eighth the losses as well as the benefits of a Circuit held that parole officials enjoyed parole system. immunity from 42 U.S. Code Section 1983 suits involving a parolee’s crime. In Nelson v. However, on subsequent rehearing by the Balazic,40 a Missouri parolee kidnapped and Fifth Circuit, the decision to release without raped three women after learning that he supervision was held to be discretionary and, was going to be sent back to prison for vio- therefore, not actionable under the FTCA. lating his parole. The women were employ- The court noted that had plaintiffs alleged ees of a drug and alcohol treatment program that the Commission ignored a required step that the parolee was referred to once paroled. of the decisionmaking process, such a claim The defendants were two members of the would be actionable. Alternatively, the court Missouri Board of Probation and Parole and suggested that a claim would be actionable the actual parole officer of the parolee. The where the Board could be shown to have court held the two parole board members to breached a duty sufficiently separable from be absolutely immune from suit in perform- the decisionmaking function to be nondis- ing the quasi-judicial function of deciding to cretionary and, therefore, outside the judi- grant, deny, or revoke parole. The parole 77 officer was found to have only qualified under state law; and (2) the parole board immunity because her duties were not “inti- members were not held liable under federal mately associated with the judicial process.” law because of the following: Although the probation officer was granted only qualified immunity, the court held that ■ The 14th amendment protects a person her conduct did not violate clearly estab- from deprivation by the state of life with- lished statutory or constitutional rights and out due process of law, and, although the she was thus immune from the suit. decision to release the parolee from prison was state action, the parolee’s action 5 To summarize, decided cases strongly indi- months later cannot be considered as cate that, although suits by victims of crime state action. challenging release decisions do not usually ■ Regardless of whether the parole board succeed, liability may in fact be found in either had a duty to avoid harm to the cases of negligent release by board members, parolee’s victim or proximately caused her supervisors, or governmental agents, but such death, parole officials did not “deprive” negligence must be gross or reckless. Mere the victim of life within the meaning of negligence is not enough. Gross or reckless the 14th amendment. negligence, however, cannot be defined with precision and must be decided on a case-by- ■ Under the particular circumstances where case basis. The preceding cases merely sug- the parolee was in no sense an agent of the gest general boundaries. parole board and the board was not aware that a particular person, as distinguished B. Legislative Remedy If There Is from the public at large, faced any special Liability Exposure danger, that person’s death was too remote a consequence of parole board’s action to A case decided by the United States Supreme hold the officers thereof responsible under Court in 1980 invites special attention because Section 1983 of 42 U.S. Code.42 it is an indication of what might and can be done legislatively to enable parole board mem- Note that Martinez involved, among other

UPERVISORS bers to avoid state tort liability based on neg- S issues, the constitutionality of a state statute 41 ligent release. In Martinez v. California, a passed by California specifically granting 15-year-old girl was murdered by a parolee absolute immunity to a public entity or a

FFICERS AND 5 months after he was released from prison public employee from liability under state O despite his history as a sex offender. The par- tort law for any injury resulting from parole

AROLE ents of the deceased girl brought an action in release determinations. What the Martinez /P a California court under state law and Section case decided was simply that a state immu- 1983 of 42 U.S. Code (such claims may also nity statute is constitutional when applied ROBATION P be filed in state courts at the option of the to defeat a tort claim against state officials plaintiff), claiming that state officials, by their arising under state law. The court said action in releasing the parolee, subjected the SSUES FOR

I that whether one agrees or disagrees with murder victim to a deprivation of her life California’s decision to provide absolute EGAL L without due process of law and were there- immunity for these cases, one cannot deny fore liable in damages for the harm caused THER that the law rationally furthers a policy that O by the parolee. The trial court dismissed the reasonable lawmakers may favor. The case complaint. The case eventually reached the did not resolve the issue of whether a parole United States Supreme Court. The Supreme board member, when deciding whether to

IABILITIES AND Court held the following: (1) the California L release an inmate, is entitled to absolute immunity statute is not unconstitutional IVIL immunity as a matter of constitutional law. C when applied to defeat a tort claim arising That issue is still unresolved. Other states 78 CHAPTER might, however, pass a similar statute if they religious significance to the plaintiff while want to fully protect their officers from pos- participating in a drug treatment program. sible liability for official acts under state law. The Irving court found absolute immunity 6 L

Plaintiffs in Martinez contended that liability for parole board members. However, the OF IABILITY ensued under the 14th amendment of the court noted the plaintiff’s claim for declara- Constitution. The United States Supreme tory relief could still be addressed because Court replied, however, that the amendment evidence tended to demonstrate impermissi- P protects persons only from deprivations by ble discrimination on the part of the parole AROLE the state of life without due process of law. board. The Jones court found the parole B

State involvement must be present for liabil- board was not “a person” within the mean- OARD ity to ensue. Although the decision to release ing of Section 1983 of 42 U.S. Code. With the parolee from prison in this case was orig- regard to the hospital that terminated treat- M MESFOR EMBERS inally considered an act of the state, what ment on the plaintiff’s refusal to remove his the parolee did 5 months after release could skullcap, the court found that the parolee not be fairly characterized as state action. could possibly make out a claim against it

The death in this case was too remote a con- were he able to establish that the action R LAEOR ELEASE sequence of the parole officials’ action to taken was “state action.” hold them responsible under the federal civil rights law. This implies that, in federal litiga- B. Procedural Rights N tion, a negligent initial decision to release is ONRELEASE Parole boards are also subjected to suit by weakened by the passage of time. offenders for alleged procedural due process

■■■ violations. Here, case law demonstrates an easier compliance with notions of immunity. Partee v. Lane45 held a summary of evidence III. LIABILITY OF relied on to deny parole was not required by due process. Parole decisions are based PAROLE BOARD on broad discretion statutorily granted the TO INMATES FOR parole authority. Furthermore, the Partee court held parole boards are absolutely VIOLATION OF immune from 42 U.S. Code Section 1983 RIGHTS suits for actions taken when processing parole applications.

A. Substantive Rights Adams v. Keller46 was a 42 U.S. Code Section Two cases involving Section 1983 of 42 U.S. 1983 action against the parole commissioner Code claims against parole boards alleged to for misapplication of youth parole guide- have deprived plaintiffs of fundamental civil lines. The court examined the factual basis liberties. In United States v. Irving,43 a Federal for the plaintiff’s claim of abuse of discre- Court of Appeals for the Seventh Circuit deci- tion by the parole commission in setting the sion, the plaintiff claimed systematic racial plaintiff’s parole date. The court found no discrimination against black inmates with evidence of bad faith or action outside the respect to parole releases. In Jones v. Eagleville scope of authority by the commissioner. Hospital and Rehabilitation Center,44 a 1984 However, the plaintiff’s claim of right to a Pennsylvania District Court case, the plain- new parole hearing based on the parole com- tiff brought suit against the parole board mission’s failure to consider the plaintiff’s after a parole revocation occasioned by the response to rehabilitation when setting a plaintiff’s refusal to remove a skullcap with parole date was affirmed. The court found 79 that while Congress intended to apply SUMMARY concepts of punishment, retribution, and deterrence in passing the Youth Corrections his chapter discusses issues related to Act, there was no indication that Congress T the liability of parole boards for release intended to totally abandon any considera- or nonrelease. It addresses the following con- tion of potential for rehabilitation. cerns: the rights, if any, to which inmates are entitled in parole release hearings, the civil In Corby v. Warden,47 the plaintiff charged liability of parole boards for crimes commit- that the state parole hearing officer violated ted by inmates who are released and who his constitutional rights by intercepting commit crimes while on parole, and the lia- mail explaining mitigating circumstances bility of parole boards to inmates for viola- for the alleged violation of parole. The court tion of rights related to parole release. found the claim was based on the hearing officer’s acts as a judicial officer and that Case law holds that inmates hardly have the officer was, therefore, entitled to quasi- constitutional rights in parole release hear- judicial immunity. ings. They do not have any constitutional right to counsel, although that may be given In three other 42 U.S. Code Section 1983 by state law or agency policy. They have no suits against parole boards,48 courts easily constitutional right to be informed of the found immunity for decisions relating to release criteria, although that may also be granting, denying, or revoking parole. given by state law or agency policy. There is Walker v. Prisoner Review Board 49 held that, no constitutional right to be given an expla- although failure of the parole board to allow nation for parole denial, although most the inmate access to his file was a violation of jurisdictions in fact routinely give inmates due process rights provided under statutory written explanations; hence, this is realisti- law, the court nevertheless affirmed absolute cally not much of a legal issue. immunity for these official actions. The court held the board’s consideration of vari- Parole board liability for the release of an ous newspaper articles would not be a viola- inmate on parole who subsequently commits UPERVISORS S tion of due process unless the inmate had an offense is an important issue that has not been given an opportunity to refute the repeatedly drawn the attention of the courts. information. Similarly, the court held the The public reasons that since public protec-

FFICERS AND board is entitled to consider a wide array of O tion is one purpose of parole, the board information, and such information need not should be held liable if a parolee injures a AROLE bear any relation to the crime with which /P member of the public because if the parolee the inmate plaintiff is charged. Finally, the were not released the injury would not have court noted the Seventh Circuit’s holding

ROBATION occurred. Generally, however, these claims P that all tasks of the Illinois Prisoner Review have failed because courts hold that parole Board were adjudicatory in nature, meaning board members are entitled to absolute

SSUES FOR that no distinction between ministerial and I immunity when engaged in actions similar adjudicatory functions was recognized. There-

EGAL to those performed by a judge. Some courts L fore, Illinois parole officials enjoy absolute have found liability, however, in cases where

THER immunity for virtually all official actions.

O gross or reckless negligence on the part of the board is established. Each of the above categories of parole board liability cases exhibits a similar pattern of In lawsuits involving alleged violations of IABILITIES AND L analysis and similar results. Parole boards inmates’ constitutional rights related to

IVIL may find careful analysis of the statutes parole, courts have held that parole board C under which they operate to be a useful members are not liable, affording them 80 guide to procedural requirements. CHAPTER immunity in the performance of official 15. Payton v. United States, 679 F.2d 475 responsibilities. Parole boards must be care- (5th Cir. 1982). ful, however, to observe the procedural guidelines prescribed by state law or by 16. Johnson v. Wells, 566 F.2d 1016 (5th 6 L agency policy because deviation from them Cir. 1978). OF IABILITY might raise issues of due process violation. 17. Haymes v. Regan, 525 F.2d 540, 544 (2d Cir. 1975).

Notes P AROLE 1. Greenholtz v. Nebraska Penal Inmates, 18. Id.

442 U.S. 1 (1979). B 19. United States v. Irving, 684 F.2d 494 OARD 2. Gagnon v. Scarpelli, 411 U.S. 778; 93 S.

(7th Cir. 1982). M

Ct. 1756 (1973). FOR EMBERS 20. Adams v. Keller, 713 F.2d 1195 (6th Cir. 3. It is doubtful whether any correctional 1983). system could prevent prisoners from secur- R ing prehearing legal assistance. See Bounds v. 21. Id. OR ELEASE Smith, 430 U.S. 817, 828 (1977). Pub. L. No. 94233, 90 Stat. 21q (codified at 18 22. Horton v. Irving, 553 F. Supp. 213,

U.S.C. Sec. 42014218 (1976)). (N.D. Ill. 1982). See also, U.S. ex. rel. Scott v. N Illinois Parole & Pardon Board, 669 F.2d ONRELEASE 4. 18 U.S.C. Sec. 4208(d)(1) (1976). 1185 (7th Cir. 1982).

5. United States Parole Commission. 23. Stanley v. Dale, 298 S.E.2d. 225 (W. Available on the World Wide Web at Va., 1982). www.usdoj.gov/uspc/mission.htm. 24. Partee v. Lane, 528 F. Supp. 1254 6. Id. (U.S.D. Ill. 1982).

7. Comment, Due Process: The Right to Counsel 25. V. O’Leary and K. Hanrahan, Parole in Parole Release Hearings, 54 Iowa L.R. 497, Systems in the United States, 44 (3d ed. 1976). 499 (1968). 26. King v. United States, 492 F.2d 1337 8. Id. at 499. (7th Cir. 1974). See also, Fronczals v. Warden, El Reno Reformatory, 553 F.2d 9. Ganz v. Bennsinger, 480 F.2d 88 (7th Cir. 1219 (10th Cir. 1977). 1973). 27. Johnson v. State, 815 F.2d 5 (1987). 10. Holup v. Gates, 544 F.2d 82 (2d Cir. 1976), cert. denied, 430 U.S. 941 (1977). 28. See generally, Johnson v. Wells, 566 F.2d 1016 (1978); Franklin v. Shields, 569 F.2d 11. Buchanan v. Clark, 446 F.2d 1379 (5th 784 (1972); Thompson v. Burke, 566 F.2d Cir.), cert. denied, 404 U.S. 979 (1971). 231 (1977).

12. 18 U.S.C.S. Sec. 4206, 9 (2000). 29. 426 N.Y.S.2d 931 (1980).

13. F. Merritt, Due Process in Parole 30. 424 N.Y.S.2d 774 (1980). Granting: A Current Assessment, 10 John Marshall J. 93, 111 (1976). 31. 614 P.2d 728 (1980).

14. Id. at 113. 81 32. Id. at 732. 41. Martinez v. California, 444 U.S. 277 (1980). 33. Larson v. Darnell, 448 N.E.2d 249 (Ill. App. Ct. 1983). 42. Id.

34. Grimm v. Arizona, 115 Arizona 260, 43. United States v. Irving, 684 F.2d 494 564 P.2d 1227 (1977). Subsequently Ryan v. (7th Cir. 1982). State, 656 P.2d 597 (Ariz. 1982) abolished the discretionary v. ministerial distinction in 44. Jones v. Eagleville Hospital and Arizona, hence severely curtailing the immu- Rehabilitation Center, 588 F. Supp. 53 nity defense. (U.S.D. Pa. 1984).

35. Note, Torts—Parole Board Members 45. Partee v. Lane, 528 F. Supp. 1254 Have Only Qualified Immunity for (U.S.D. Ill. 1982). Decision to Release Prisoner, 46 Ford. L. Rev. 1301, 1313 (1979). 46. Adams v. Keller, 713 F.2d 1195 (6th Cir. 1983). 36. Id. at 1314. 47. Corby v. Warden, 561 F. Supp. 431 37. Payton v. United States, 636 F.2d 132 (U.S.D.N.Y. 1983). (5th Cir.), rehearing granted, 649 F.2d 385 (5th Cir. 1981); 679 F.2d 475 (5th Cir. 48. Walker v. Missouri Department of 1982). Probation and Parole, 586 F. Supp. 411 (U.S.D. Mo. 1984); Ross v. United States, 38. Id. 574 F. Supp. 536 (U.S.D.N.Y. 1984); Walker v. Prisoner Review Board, 594 39. Janan v. Trammell, 785 F.2d 557 (1986). F. Supp. 556 (U.S.D. Ill. 1984).

40. Nelson v. Balazic, 802 F.2d 1077 49. Id. (1986). UPERVISORS S FFICERS AND O AROLE /P ROBATION P SSUES FOR I EGAL L THER O IABILITIES AND L IVIL C

82 CHAPTER 7 Conditions, Modifications, and Changes in Status

INTRODUCTION

I. CONDITIONS IN GENERAL

II. CONDITIONS AND CONSTITUTIONAL RIGHTS

A. Free Speech and Assembly B. Association C. Religion D. Privacy E. Procreation F. Travel G. Self-Incrimination H. Some Specific Conditions and Their Legal Status l. Shaming or Public Notification 2. Polygraphs 3. Work as a Condition—Paid or Unpaid Volunteer

III. VAGUENESS AND REASONABLENESS AS LIMITATIONS

A. Vagueness B. Reasonableness HPE 7 CHAPTER IV. EXPLANATION OF CONDITIONS

V. MODIFICATIONS OF CONDITIONS

VI. EXTENSION

VII. TERMINATION

VIII. CHANGES IN STATUS OF THE OFFENDER

SUMMARY

NOTES CHAPTER INTRODUCTION and the potential liability issues that may arise in the inadequate or improper enforce- he enforcement of the conditions of ment of conditions or reporting requirements. 7 parole or probation is essential to the T C

A regular condition of probation or parole ONDITIONS proper supervision of offenders. Conditions is generally one that is statutorily authorized reflect the will of the court or parole board or approved and is imposed on almost every and the expectation that the court or parole

offender granted probation or parole. In , M board has established in order for a parolee

addition, a regular condition may be one ODIFICATIONS or probationer to successfully complete the that, even though not specifically statutorily term of supervision. As officers of the court mentioned or enumerated, is imposed by a (probation officers) or officers of the execu- particular court or parole board on almost tive branch (parole officers), probation and every offender requesting a grant of proba- , parole officers have the legal responsibility AND tion or parole who appears before that sen-

for ensuring that the offender abides with C

tencing or parole authority. Because of its IN HANGES the conditions imposed by the court or universal application, this type of condition parole board. is referred to as a “regular” condition. The

In addition, the conditions of parole or pro- imposition of a regular condition of proba- S TATUS bation form an essential part of any supervi- tion or parole is less likely to be successfully sion or treatment plan established for the challenged on appeal than a special condi- offender. The determination of the risks tion. A regular condition is almost invariably and needs of an offender, the results of any presumed to be reasonable. assessments administered to the individual, A special condition is one that is not and specific recommendations made by the imposed as a matter of course on all proba- officer to the court or parole board that is tioners or parolees. It is usually designed considering the release of the defendant to promote the rehabilitation of a specific often reappear as conditions of parole or offender by requiring him or her to avoid an probation. These conditions, in turn, must environment deemed not to be conducive to be incorporated in the supervision plan of his well-being or to participate in a particu- the offender and any treatment plan devel- lar program or service in order to address oped for the individual. a specific problem or need of his or hers. Conditions of probation or parole can basi- In addition, a special condition may be cally be categorized into three classifications: imposed in order to reduce the potential regular, special, and modified conditions. In of an offender committing a specific harm addition to the conditions that an offender to the community or a victim. So long as must follow, under certain circumstances, a condition can reasonably be said to con- an offender may be obligated to report any tribute both to rehabilitation aims and the changes in his status to his officer. This obli- protection of society, the condition is likely 1 gation to report a change in status may be to be held permissible; however, a condi- required as a condition of probation or parole, tion that bears no relationship to the offense as an administrative requirement of the pro- committed by the offender or to future crim- bation or parole department, or as a statutory inal acts, does not protect the public, or mandate. This chapter will examine the vari- impermissibly infringes on a probationer or ous types of conditions and change of status parolee’s basic constitutional rights is invalid. requirements that may be imposed on or Conditions are set only by the court or required of an offender, the responsibility parole board; therefore, the field officer of an officer to ensure that conditions are need not fear liability for their imposition. enforced or a change in status is reported, However, he or she should be concerned 85 with the enforcement of conditions, as mat- herself by obtaining from the offender a ters of both rehabilitation and practicality. written consent, or if that is refused, a writ- The best time to deal with such issues is ten admission that the offender is aware of before they are imposed. A presentence or the order and wishes to challenge it. Fourth, preparole report should not include a condi- substantial changes in set conditions should tion that is either overly difficult to super- not be made except under emergency condi- vise or open to serious question as to its tions. Fifth, any changes of an enduring function or legality. For example, a condi- nature must be made by the court or the tion requiring church attendance would fall board.2 In all events, the officer is obligated into this category because of a potential con- to notify the offender of the change and, as flict with the first amendment’s guarantee of with conditions in general, explain the con- the free exercise of religion. dition to the offender.

A condition that is phrased in such a way as Unequal or arbitrary enforcement of condi- to require compliance by the offender with tions can be the basis for a lawsuit under “any other order” of the supervising officer the due process and equal protection clauses can lead to serious problems for the officer. of the United States Constitution and possi- Such a condition may be an improper delega- bly under individual state constitutions. tion of authority because it leaves the decision Unreasonable distinctions between indivi- to impose or enforce a certain requirement duals or classes of individuals will poten- on the offender to the probation or parole tially expose the officer to personal liability. officer and not with the court or parole board. Moreover, the arbitrary or capricious enforce- Thus, absent express statutory authority to ment of conditions or the requirement that a the contrary, such a condition is generally probationer or parolee perform an unreason- void. Moreover, a court or parole board can- able act may also incur liability. The ques- not bestow blanket authority on a probation tion of reasonableness will be decided on a or parole officer to require an offender to per- case-by-case basis. Class distinctions and form an act or refrain from doing so. Not unequal or selective enforcement based on only is such a “blank check” illegal, but it is race, creed, gender, religion, or ethnicity UPERVISORS

S also not conducive to rehabilitation to put are extremely difficult to justify and should the offender in a position that would cause always be avoided. severe peer or family conflict, such as order-

FFICERS AND Several specific areas have been the targets of

O ing him to become an informant. judicial examination, particularly conditions

AROLE General rules can be stated that should give involving reproductive rights; rights of free /P the field officer ample guidance. First, a for- speech and expression; “scarlet letters” (i.e., mal condition set by the court or the board public shaming); and the requirement to ROBATION P is generally acceptable (note the limitations undergo periodic polygraph examinations. discussed in this chapter). Second, a reason- After a brief statement of the current law on

SSUES FOR able condition, such as meeting with the conditions in general, the remainder of the I officer at a certain time and place, is accept- discussion about conditions in this chapter EGAL L able as long as it is imposed in good faith. will consider the more difficult ones: (1)

THER Third, in emergency situations, radical conditions that infringe upon fundamental O orders will be acceptable provided they are constitutional rights, (2) conditions that imposed in good faith, are temporary and infringe upon other rights, and (3) explana- necessary under a true emergency, and are tion of conditions to the offender. IABILITIES AND

L not illegal. When faced with such a situa-

IVIL tion, the officer can best protect himself or C

86 CHAPTER I. CONDITIONS IN In addition, legislators may authorize the courts or parole board to impose special GENERAL conditions on certain offenders but not all. For example, sex offenders may be required 7 C

robationers and parolees enjoy condi- to participate in sex offender therapy, regis- ONDITIONS Ptional freedom from confinement. All ter as sex offenders, and refrain from enter- jurisdictions impose some explicit condi- ing child safety zones. Substance abusers

tions, or standards of conduct, that the pro- may be required to submit to urinalysis and , M

bationer or parolee is expected to observe in participate in substance abuse treatment. ODIFICATIONS return for his or her release. Data about the Persons convicted for driving under the number and variety of parole conditions are influence may be required to refrain from less abundant than probation condition data operating a motor vehicle and participate because the number of authorities imposing ,

in counseling for alcohol abuse. AND parole conditions is limited.3 C

Moreover, courts or the parole board may IN HANGES Some of the more common conditions impose a special condition on an offender imposed on probationers and parolees are: that may not be statutorily mentioned but

may address a specific risk or need of the S ■ Commit no offense against the state in individual offender. Thus, a person convict- TATUS which the offender was convicted, another ed of embezzlement may be required, as a state, or the United States of America. condition or probation or parole, not to seek ■ Refrain from congregating around or employment as a bookkeeper. A person con- associating with disreputable persons victed of domestic assault may be required, or persons with criminal convictions. as a condition of probation or parole, not to contact his or her spouse or other injured ■ Abstain from the use or possession of family member. Generally, a special condi- alcohol or drugs. tion of probation or parole is invalid only if ■ Maintain suitable employment. it has all three of the following characteristics: (1) has no relationship to the crime, (2) ■ Report to one’s probation or parole officer relates to conduct that is not in itself crimi- on a regular basis. nal, and (3) forbids or requires conduct that ■ Obtain permission to travel to another is not reasonably related to the future crimi- locality in the state or to another state. nality of the offender or does not serve the 4 ■ Observe limitations on the possession or statutory ends of probation or parole. ownership of firearms or other weapons. Considering that more than 4.1 million ■ Pay restitution to the victim of the adult men and women were on probation or offender’s crime. parole at the end of 1998,5 the frequency of Most of these above listed conditions are litigation concerning the constitutionality statutorily authorized by the legislatures of the and legality of conditions is surprisingly States. This indicates the desire of legislators small. This is because a probationer/parolee that the courts or parole board impose certain realizes that he or she has agreed to the con- standard conditions on probationers and ditions and is also aware of the possible con- parolees. Nevertheless, the number of legisla- sequences of challenging them. The mere act tively enumerated conditions of probation or of agreeing to the terms of probation/parole, parole varies widely from state to state. Some however, does not mean that a legal chal- state laws have only a minimum number of lenge is foreclosed because of waiver. Courts prescribed conditions while other states’ have said that some constitutional rights statutes list an extensive array of conditions. may not be waived, particularly if the alternative to a refusal to waive is incarceration 87 or nonrelease. This might amount to undue sex offenses and assaultive domestic offenses. influence or coercion. In these situations, although still rare, certain conditions are gaining popularity in the As a general rule, the authority granting pro- country and are being used in more and bation or parole has broad discretion to set more jurisdictions. terms and conditions within the statutory framework creating the disposition. Most ■■■ authorizing statutes suggest minimum conditions. The supplemental discretion also conferred on the courts or parole board is II. CONDITIONS AND not unlimited, however, and a challenged CONSTITUTIONAL condition will not be upheld if it cannot be shown to bear some reasonable relationship RIGHTS* to the rehabilitative purpose underlying the probation and parole systems or has some n general, judges and parole boards exer- rational basis for deterring future criminal Icise a lot of authority and discretion acts by the offender. As the core conditions when imposing conditions of probation or almost always are so related, challenges to parole. One limitation, however, is that the them are seldom successful. Nevertheless, condition must be constitutional. Despite even if a condition has a rational basis in conviction, probationers and parolees have law, the specific language found in the con- diminished constitutional rights, meaning dition must inform the offender in clear, they retain some but also have lost some definite, and unambiguous terms of what constitutional rights. The manner in which he or she must or must not do or said courts have addressed the issue of what con- condition will be invalid.6 stitutional rights probationers and parolees retain or lose is discussed below. As a general rule, courts will consider conditions valid as long as they are: (1) reasonably A. Free Speech and Assembly related to the rehabilitation of the offender The United States Supreme Court has rec- UPERVISORS

S or the protection of society, (2) clear, (3) ognized that parolees (and by inference reasonable, and (4) constitutional. How probationers) retain a conditional liberty these requirements are interpreted, however, interest whenever they are granted probation FFICERS AND varies considerably from one court to anoth- O or parole.7 Thus probationers and paroles er, even within one state. have certain fundamental rights that are not AROLE /P What follows in this chapter deals with abridged simply because the offenders are on 8 conditions that are less often imposed. The probation or parole. Although these funda-

ROBATION mental rights may be restricted in certain P material presented will illustrate that the power to set conditions is limited and will circumstances, appellate courts have also discuss the approach taken by the courts to limited the restrictions affecting speech and SSUES FOR I determine whether a condition is permissi- assembly rights that may be imposed on

EGAL offenders as a condition of probation and L ble. Even though these conditions are less parole. Two leading cases in the parole con-

THER often imposed, the imposition of certain O conditions may show a trend indicating that ditions content recognized the principle they are being increasingly utilized by the that certain constitutional rights cannot be courts. This is especially the case with regard abridged because of the status of the parolee. IABILITIES AND

L to persons granted probation or parole for IVIL C

88 *The issue of search and seizure is addressed in Chapter 8, Supervision. CHAPTER In Sobell v. Reed,9 a federal parolee asserted California’s rehabilitative system. Thus, the that his first amendment rights had been Court permanently prohibited the state from: violated by an action of the parole board. Sobell was restricted by the board from 1. Conditioning Hyland’s parole on his 7 C going outside the limits of the Southern seeking such advance permission; and ONDITIONS District of New York “without permission 2. Prohibiting any California state parolee from the parole officer.” On a number of from addressing public assemblies held occasions after his release, Sobell sought at the University of California at Santa , M and obtained permission to travel to, and to Cruz, when such prohibition is because ODIFICATIONS speak at, various places. However, on other of the expected content of the speech.15 occasions, such requests were denied. Sobell charged that such denials invaded his first These two cases exemplify the basic notion , amendment rights. that even though an individual may have AND been convicted of a crime, he still retains C

The federal district court stated that while certain fundamental rights, especially the IN HANGES there are differences between prisoners and right of freedom of speech and freedom of parolees, there are none that diminish the assembly. These rights can be infringed only protections enjoyed by the latter under the if the state shows a rational relationship S 10 TATUS first amendment. After testing the restric- between the restriction on the rights of the tion by the same principles, such as, “where individual and a legitimate penalogical inter- the (parole) authorities strongly show some est on the part of the state (or federal) author- substantial and controlling interest which ities. For persons with a conditional liberty requires the subordination or limitation of interest (e.g., parolees), the state usually these important constitutional rights, and must demonstrate a heightened or com- 11 which justifies their infringement,” the court pelling interest, instead of a more general held that the board violated Sobell’s exercise interest, for curtailing the parolee’s liberty of his rights of speech, expression, or assembly, interest. Moreover, the restriction imposed except when it could show that withholding on a fundamental constitutional right must permission was necessary to safeguard against be narrowly tailored to serve the compelling specifically described and highly likely dan- interest of the state in the least restrictive 12 gers of misconduct by the parolee. means possible. These court holdings logi- cally extend to the probation area. The second case, Hyland v. Procunier,13 involved a California parolee. As a condition In Porth v. Templar,16 the federal Tenth Circuit of his parole, he was required to obtain per- Court of Appeals stated that probation con- mission from his parole officer before giving ditions must bear a relationship to the treat- any public speeches. The parolee’s requests ment of the offender and the protection of to give speeches about prison conditions at the public. “The case stands for the proposi- a college campus were denied on two occa- tion that absent a showing of a reasonable sions on grounds that the speeches might relationship between a release condition and lead to student demonstrations at the prison. the purpose of release, the abridgement of a The Court stated that “California (and) fundamental right will not be tolerated.”17 federal law has imposed the due process rule Thus, the implication in viewing this case of reasonableness upon the State’s discretion with the other two cases is that release con- in granting or withholding privileges from ditions abridging fundamental rights can be 14 prisoners, parolees, and probationers.” The sustained only if they serve a legitimate and Court found that California made no show- demonstrated rehabilitative objective or ing that the condition imposed on Hyland objectively serve to protect the public.18 was in any way related to the valid ends of 89 Nevertheless, these cases do not suggest appellate court found that this condition that the mere assertion by a probationer or was narrowly tailored to prevent her from parolee that some right is embraced within receiving a financial reward for her crime the first amendment will put that right without unduly infringing on her right to beyond the reach of a properly tailored con- talk about the matter. dition. For example, in Porth v. Templar, the probation condition prohibited a long-term In another recent decision, United States v. tax protestor from circulating or distributing Crandon,23 the United States Third Circuit materials concerning the “illegality” of the Court of Appeals upheld a condition of Federal Reserve System and the income tax supervised release for a defendant who and from speaking or writing on those pleaded guilty to receiving child pornogra- subjects. The court of appeals held these phy that prohibited him from accessing the restrictions were too broad, but it approved Internet or other similar computer networks a narrower condition prohibiting the proba- without prior approval from his probation tioner from encouraging others to violate officer. The Court found that this condition the tax laws.19 Another appeals court upheld was reasonably related to the criminal a challenge to a condition of probation that activity of the defendant, who had used the a convicted gambler associate only with law- Internet to develop an illegal sexual relation- abiding citizens, a potential restriction on ship with a minor. Finally, the Courts have his associational rights.20 Even political rights, given approval to conditions of probation which have traditionally been accorded pre- restricting antiabortion protestors convicted ferred status, may be circumscribed under of trespassing on the private property of certain situations. Thus, the federal Fifth abortion clinics from being within a specific Circuit Court of Appeals once upheld the distance from the clinics. The Courts have imposition of a condition of probation on held that this condition does not unduly a former congressman convicted of election infringe upon their right of assembly or free law violations that prohibited him from speech because the condition has a reason- engaging in political activity.21 able relationship to deterring future criminality, i.e., trespassing once again on private

UPERVISORS 24 S Several recent court decisions have examined property. conditions restricting the first amendment rights of probationers. In Commonwealth of B. Association FFICERS AND Massachusetts v. Power 22

O , the defendant was Freedom of association is also protected by convicted in a highly publicized case of

AROLE the first amendment. While a condition

/P armed robbery. Having granted probation to restricting association is permissible provided the defendant, the trial court then proceeded there is a correlation between the offense for to order her, as a condition of probation, ROBATION

P which the probationer or parolee was con- not to engage in any profit-generating activi- victed and a person or place the association ty connected to publishing anything about with or presence at which may lead the pro- SSUES FOR

I her crime or how she was a fugitive for so bationer or parolee to commit the same or many years. The defendant appealed this EGAL

L similar crime, this condition may still be condition, arguing that this restriction was invalidated by courts for vagueness or over- THER an impermissible infringement on her first O breadth. The condition must be clear to the amendment right of free speech. The appel- probationer or parolee25 and also to the offi- late court rejected this contention. The cer responsible for enforcing the conditions.26 Court noted that the trial court did not

IABILITIES AND An unclear or vague condition needs to be L order her not to discuss the incidents sur- clarified further by the officer so that the IVIL rounding her offense. Instead, the trial court C probationer/parolee generally knows which simply said that she could not profit mone- conduct is prohibited. For example, does a 90 tarily from any discussion of her crime. The CHAPTER suspected gang member or person arrested AA meetings had a pronounced religious for but not convicted of a crime come under component and that he, being an atheist, the term “disreputable persons?” Does a con- should not have been required to participate dition forbidding a probationer/parolee from in a religious-based program. 7 C frequenting places where alcohol is served ONDITIONS include restaurants or other places where The Second Court of Appeals agreed with alcoholic beverages may be sold? The pur- the defendant’s contention. The Court stat-

pose or intent of such conditions is usually ed that a person who had no objection to a , M

a matter of judicial or agency determination religious-based program could be required, ODIFICATIONS and therefore varies from place to place. as a condition of probation, to participate in a program such as Alcoholics Anonymous. C. Religion However, if a person objected to participat-

ing in a religious-based program because of , AND The “free exercise” clause of the first amend- his religious beliefs, or lack thereof, then the ment generally puts beyond the reach of gov- C

probation department must afford him the IN HANGES ernment all questions of how an individual opportunity to participate in a secular alco- chooses to regulate his or her religious life. hol treatment program. This opinion seems In the context of correctional institutions,

to hinge on the fact that the probation depart- S penal officials are generally afforded certain ment, in making its recommendation to the TATUS latitude in restricting an inmate’s free exer- trial court, did not first ask the defendant cise of religion, provided that the restriction whether he had any religious objections to rationally furthers a legitimate interest of the participating in a religious-based program. 27 penal institution. However, in the conditions If the department had and the defendant of probation or parole context, the Courts had acquiesced, then it does not appear that have examined much more closely the con- the defendant could later say the depart- stitutionality of restrictions on a probationer’s ment’s recommendation violated his first or parolee’s free exercise of religion. Thus a amendment rights.30 probation or parole condition that purports to require that a convicted person attend Sunday school or church services has invari- D. Privacy ably been held to be improper.28 The right of privacy has been the basis of arguments challenging conditions that Recently the Courts have been examining the restrict relationships with a family member,31 propriety of ordering an offender to partici- prohibit childbearing,32 and limit sexual pate in a religious-based treatment program intercourse.33 A condition is not invalidated as a condition of supervised release. In Warner merely because it invades the fundamental v. Orange County Department of Probation,29 right to privacy. However the state generally the Orange County, New York, Probation must demonstrate a compelling, as opposed Department recommended to the court that to rational, interest for infringing on proba- a defendant, convicted for the third time for tioner/parolee’s right to privacy. The degree driving while intoxicated, attend Alcoholics of demonstrating this compelling state inter- Anonymous meetings. The trial court fol- est varies from state to state. For example, lowed the recommendation of the probation a condition that prohibits a probationer or department and ordered the defendant to parolee from residing with his or her spouse attend said AA meetings as a condition of or other family members would doubtless probation. The defendant subsequently filed be unconstitutional if imposed for driving a federal lawsuit, arguing that the probation while intoxicated, but might be justifiable if department violated his first amendment the crime were domestic abuse or an injury rights by recommending that he attend the to a child. AA meetings. The defendant contended that 91 E. Procreation would suffer malnutrition, the trial court The litigation concerning abortion and con- ordered her not to conceive during the term traception tells us that the Constitution proof her probation. tects—as an aspect of a judicially understood The defendant appealed this condition of constitutional right of privacy—the procreative the trial court. The defendant argued that function from government regulation unless this condition was an unconstitutional extremely well justified. However in the area restriction of her fundamental rights to pri- of probation and parole law, research has vacy and to procreate. The appellate court revealed no appellate case that has approved acknowledged that this condition was rea- the restriction of childbearing as a condition sonable, in that it related to the offense for of supervised release for a female offender. which the defendant was convicted, i.e., Moreover, research has found very few child endangerment. Nevertheless, the Court instances in which an appellate court has further noted that whenever a condition of affirmed an order of a trial court restricting probation impinges upon the exercise of a procreative activity as a condition of super- fundamental right and is challenged on con- vised release for a male offender. Nevertheless, stitutional grounds, the Court must also although court decisions across the country determine whether the condition is imper- have been consistent in generally disallowing missibly overbroad in addition to determin- this particular condition, the reasons for doing ing its reasonableness. In this instance, the so have varied from jurisdiction to jurisdiction. Court found that the purpose for imposing In a California case that preceded the devel- this particular condition, to wit, protecting opment of this right to its present status, a the life and health of a future child, could be probation condition prohibiting a woman achieved by alternative restrictions less sub- from becoming pregnant without being mar- versive to the defendant’s fundamental right ried was struck down.34 It was central to the to procreate. Thus the appellate court invali- court’s reasoning that the probationer had dated this condition of probation. been convicted of robbery and that there Since this decision was rendered, several was no relationship between robbery and UPERVISORS

S other appellate courts have invalidated con- pregnancy. In a subsequent California case, ditions of probation restricting a defendant’s People v. Pointer,35 a California appellate court right to procreate. In Thomas v. State,36 a once again barred the imposition of a condi- FFICERS AND Florida appellate court struck a condition O tion precluding a female probationer from of probation ordering a probationer not to bearing children, even though the condition in AROLE become pregnant during the term of her /P that instance was directly related to the offense probation unless she was married on the for which she was placed on probation. grounds that it bore no relationship to the ROBATION P In Pointer, the defendant had developed offense for which she was convicted and was strange but deeply rooted beliefs regarding not reasonably related to future criminality. 37

SSUES FOR In People v. Ferrell, an Illinois appellate court I the proper nutrition for her children. The struck down a condition prohibiting a pro-

EGAL defendant believed in a very strict low-calorie L vegetarian diet and rejected all forms of probationer from engaging in any activity with

THER the reasonable potential of causing pregnancy

O tein. She insisted that her children follow this dietary regiment. The children suffered on the grounds that a state statute forbade a severe malnutrition and physical defects as court from ordering a probationer to use a a result of this diet. The defendant was conform of birth control as a condition of pro-

IABILITIES AND 38 L victed of child abuse. Because of the defen- bation. Finally, in United States v. Smith,

IVIL United States Eighth Circuit Court of

C dant’s insistence in following this diet and the potential that another of her children Appeals struck a condition that prohibited 92 CHAPTER a probationer from conceiving another child probation or parole have invariably been with someone other than his wife. held to be invalid, principally on the grounds that said action by the court impermissibly One case that affirmed a trial court’s deci- infringes on the authority of the United States 7 C sion to order a probationer not to conceive a Immigration and Naturalization Service to ONDITIONS child as a condition of probation is State v. make that determination.41 Kline.39 In this case, the defendant, who had

a history of abusing his children, was con- However, the limitation on travel within , M

victed of first-degree criminal mistreatment a city or region may survive where firmly ODIFICATIONS of a child. The trial court ordered that he linked to rehabilitative goals or if it bears not father any children before he completed a reasonable relationship to the offense for a drug counseling and anger management which the defendant was convicted or relates treatment program. On appeal, the Oregon to the future criminality of the probationer , AND appellate court affirmed the imposition of or parolee. Moreover, a condition requiring C

this condition. It was clear that this condi- a probationer or parolee to remain within IN HANGES tion was reasonably related to the offense for a specified geographic region has generally which he was convicted. Moreover, because been upheld as a valid exercise of the court’s

the condition did not a permanently ban or parole board’s authority. Finally, the use of S him from ever having children again but the Interstate Compact to determine whether TATUS made conceiving another child contingent a state will provide courtesy supervision for a upon completing certain treatment pro- probationer or parolee convicted in another grams, the Court found that this condition state does not constitute banishment. did not impermissibly infringe on his fundamental right to procreate. However, requests to travel at the instigation of a parolee may well be denied without vio- The United States Supreme Court has yet lating a constitutional right of the offender. to rule on the propriety of restricting one’s In Berrigan v. Sigler,42 war protestors chal- right to procreate as a condition of proba- lenged the federal parole board’s denial of tion or parole. Thus it has yet to be finally permission to make a trip to North Vietnam. resolved whether this right can be infringed This prohibition was upheld because it was under certain circumstances. Nevertheless consistent with the foreign policy interests although various courts have invalidated this of the United States and because it was nec- condition for various reasons, including the essary in order for the board to fulfill its duty impracticality of enforcing such a condi- to supervise those for whom it was responsi- tion, underlying each court’s decision is the ble. Nevertheless if the action of the parole assumption that the right to procreate is a board to deny the offender a travel permit fundamental constitutional right and that had solely been predicated on the content of the court will apply a strict scrutiny test for the offender’s speech, then the Court would determining whether the state has demon- have more closely scrutinized the action of strated a compelling interest for validating the parole board. this condition. G. Self-Incrimination F. Travel Conviction does not void or lessen a person’s Another nonspecific but important right pro- constitutional right not to testify against tected by the Constitution concerns travel. himself. Two courts of appeals, faced with Banishment conditions, when challenged, are probation conditions regarding self-disclosure usually invalidated as against public policy on tax returns, clarified under what circum- and as not related to the offense.40 Also, orders stances a probationer could be required to to deport a non-U.S. citizen as a condition of furnish incriminating information about 93 himself or herself. In one case, a probationer the commission of this offense, the defen- had been ordered to file tax returns without dant had been suspected of raping and mur- claiming his fifth amendment privilege.43 In dering a teenage girl. One of the conditions the other, a probationer was ordered to file that the trial court imposed in his proba- amended tax returns.44 The first of these tion case was that the defendant attend sex conditions was held to be improper, while offender counseling. While in counseling, the second was approved. In the latter case, the probationer admitted to his therapist while the filing of amended returns was that he had, indeed, murdered the girl. The called for—and presumably complete returns therapist then contacted his probation offi- were what the court had in mind—there was cer regarding this admission, and the officer no attempt to interfere with the probationer’s requested that the defendant report to her possible exercise of a constitutional right; he office. While visiting with his probation offi- could comply with the condition, literally, cer, the defendant admitted that the state- and on the amended return claim his fifth ment he had made in therapy was true. This amendment privilege. This would not vio- statement was used to convict him of the late the condition. Hence, probation could murder of the teenage girl. not be revoked for exercising an explicit right. In the former case, however, for the The defendant argued before the United mere assertion of the right not to incrimi- States Supreme Court that he should have nate himself, the probationer would open been Mirandized prior to being interviewed himself up to revocation. by his probation officer about the statement he made to his therapist. Moreover, the defen- Another fifth amendment issue arises when dant argued that his incriminating state- the probationer or parolee is required by a ment should not have been introduced in condition (regular polygraph tests, for exam- his murder trial because the questioning by ple) to disclose information that could be his probation officer was violative of his fifth used against him in a new criminal proceed- amendment right against self-incrimination. ing. In such circumstances, the result of a The Supreme Court noted that the defen- fifth amendment challenge to the condition dant was not under any form of custody UPERVISORS

S has turned on the following: (1) whether the at the time he was in his probation officer’s government could reasonably have expected office. This was so, even though if the pro- incriminating evidence to be forthcoming; bationer had failed to report to the office, FFICERS AND

O (2) whether use immunity was promised; and his probation could have been revoked. Since (3) whether fifth amendment rights were vol- he was not in custody, the Court therefore AROLE

/P untarily, knowingly, and intelligently waived. held that he need not have been administered a Miranda warning. In Minnesota v. Murphy,45 the Supreme Court ROBATION P recognized that although a person on pro- The Supreme Court next turned to the bation could not be compelled to waive his issue concerning whether the introduction

SSUES FOR or her fifth amendment right against self- of his incriminating statement at his murder I incrimination, the State, i.e., a probation trial violated his fifth amendment rights. The EGAL L officer, could ask an incriminating question Court noted that, in most circumstances, a

THER to a probationer, and the probationer, if he state agent is free to ask a question that may O or she voluntarily answered the question, elicit an incriminating response. Moreover, would have waived any complaint that his the Court stated that ordinarily, the right or her fifth amendment right against self- against self-incrimination is not self-executing. IABILITIES AND

L incrimination was violated. In Murphy, the In other words, a person must expressly

IVIL defendant had been granted probation for invoke this right or it is waived. Thus the C the offense of false imprisonment. Prior to Court concluded that when the probationer 94 CHAPTER in Murphy openly admitted his guilt with- Nevertheless, the Court in Minnesota v. out asserting his fifth amendment right, he Murphy did not completely resolve this final waived any complaint that any response to issue, and the above-cited footnote has more the question would violate his right against often perplexed other appellate courts con- 7 C self-incrimination. Hence the Court held fronted with this issue than it has aided ONDITIONS that this statement could be introduced in them.46 Thus courts have struggled with his trial for murder. the issue of whether, if a probationer (or

parolee) invokes his or her fifth amendment , M

The issue that the Court never reached in right, a statement can still be compelled and ODIFICATIONS Murphy concerned the legal implications if introduced in a revocation proceeding but a probationer explicitly refused to answer a not another criminal prosecution. Must a question propounded by his probation offi- probationer (or parolee) be granted immuni- cer on the grounds that it might incriminate ,

ty from prosecution in another case in order AND him. The Court touched upon this matter to be compelled to answer any incriminating C in a footnote in Murphy by stating: question to his or her probation (or parole) IN HANGES officer? Can the refusal to answer an incrim- [A] state may validly insist on answers inating question that may link the proba- to even incriminating questions and tioner to another crime still be grounds to S TATUS hence sensibly administer its probation revoke his or her probation? system, as long as it recognizes that the required answers may not be used in a Despite these unresolved questions, Minnesota criminal proceeding and thus eliminates v. Murphy does establish several legal princi- the threat of incrimination. Under such ples. One, a probationer or parolee is not circumstances, a probationer’s right to entitled to a Miranda warning prior to being immunity as a result of his compelled interviewed by his or her supervision officer testimony would not be at stake, “and concerning the conditions of his or her nothing in the Federal Constitution release. Moreover, a probationer or parolee would prevent a state from revoking cannot be compelled to incriminate himself probation for a refusal to answer that or herself in another criminal action; nor violated an express condition of proba- can he or she be required to waive his or her tion or from using the probationer’s fifth amendment right against self-incrimi- silence as one of a number of factors nation. Finally, if a probationer or parolee to be considered by a finder of fact in voluntarily responds to a question from his determining whether other conditions or her supervision officer, that statement can of probation have been violated. . . .” be used for any purpose. Id. 1147 n. 7 H. Some Specific Conditions and The Court further stated: Their Legal Status A defendant does not lose this [fifth 1. Shaming or Public Notification amendment] protection by reason of One recent trend in the field of probation his conviction of a crime; notwith- and parole law concerns the imposition of standing that a defendant is impris- conditions of supervised release for the pur- oned or on probation at the time he pose of either shaming an offender or at least makes incriminating statements, if notifying the community of the nature of the those statements are compelled they offender’s conviction. Conditions of these are inadmissible in a subsequent trial types are better known as “scarlet letter” con- for a crime other than for which he ditions. Over the last decade, public notifi- has been convicted. Id. 1142 cation laws have been enacted throughout 95 the country to inform the public of the resi- upon his inalienable right to privacy. The dence of sex offenders. These laws vary from Court further noted that this condition, state to state, with some laws requiring which required him to wear this T-shirt information regarding the residence of a sex whenever he was outside his home, would offender published in a local newspaper and undermine certain other aims of his proba- others requiring residents living near a con- tion, such as procuring gainful employment victed sex offender to be individually notified and staying employed. of the residence of the offender. Although the legislative purpose of these laws is to protect In another case, People v. Meyer,50 a trial court the community by informing persons of ordered a defendant to erect at his home a potentially dangerous offenders living in 4- by 8-foot sign with 8-inch-high lettering their midst, these laws have a tendency to that read “Warning! A Violent Felon Lives shame the offender because often the iden- Here. Enter at Your Own Risk!” The Illinois tify of these offenders, including their pho- Supreme Court found that the purpose of tograph, and a description to the crime they this sign was to inflict humiliation on the committed are made public through either probationer. The court further noted that the a newspaper or a Web site on the Internet. statutory provisions for probation in the State of Illinois did not include humiliation as a A more controversial condition of probation punishment. Thus, the court disallowed this or parole is one that requires an offender to condition. Finally, in People v. Letterlough,51 personally proclaim his or her guilt to the the New York Court of Appeals rejected the public. Appellate courts in the country are imposition of a condition that the defendant sharply divided regarding the validity of affix to the license plate of any vehicle he such a condition. Several jurisdictions have drove a fluorescent sign stating “Convicted approved the imposition of scarlet letter con- DWI” on the grounds that this condition was ditions. In Goldschmitt v. State,47 a trial court not reasonably related to the defendant’s reha- ordered a probationer, convicted of drunk bilitation and only the legislature had the driving, to place a bumper sticker on his authority to create a new form of punish- car reading “Convicted D.U.I.—Restricted ment, to wit, humiliation. UPERVISORS

S Licensee” as a condition of probation. The appellate court upheld the imposition of this These cases indicate a split in the jurisdic- condition, stating that it served a sufficient tions of the country. Those courts that have

FFICERS AND disallowed the imposition of scarlet letter or

O rehabilitative purpose and that it did not constitute cruel and unusual punishment. In shame conditions have usually done so on

AROLE 48 the grounds that the trial court exceeded its

/P Ballenger v. State, a Georgia appellate court upheld the imposition of a condition requir- statutory authority in doing so, thus leaving ing a probationer to wear a fluorescent pink open the question that a state legislature ROBATION P plastic bracelet imprinted with the words could amend its probationary statutes and “D.U.I. CONVICT.” authorize a trial court to impose a scarlet let-

SSUES FOR ter condition. Only a court in the State of I Nevertheless a number of jurisdictions have California has disallowed the imposition of EGAL L disallowed the imposition of scarlet letter con- a scarlet letter condition on constitutional 49

THER ditions. In People v. Heckler, the trial court grounds, and in that instance, the court O imposed a condition on a probationer, con- found the condition to be invalid on state victed of shoplifting, that he wear a T-shirt constitutional grounds and not on federal bearing a bold, printed statement of his sta- constitutional grounds. IABILITIES AND

L tus as a felony theft probationer whenever

IVIL he was outside his actual living quarters. The Those jurisdictions that have upheld this C appellate court, relying on state constitutional condition have done so on the grounds that 96 grounds, found that this condition impinged this condition furthers the rehabilitation CHAPTER aims of probation by deterring the offender condition, arguing that the only purpose from committing future crimes of the same that the court could impose this condition nature as the one for which he or she was was to further his treatment as a sex offender convicted. These courts have also held that and that he had already completed his court- 7 C shame or scarlet letter conditions do not vio- ordered counseling. ONDITIONS late the eighth amendment’s proscription against cruel and unusual punishment. The appellate court considered the various

Nevertheless the United States Supreme purposes for which a trial court could , M

Court has yet to rule on this matter, so the impose this condition. The Court noted that ODIFICATIONS issue concerning whether a scarlet letter con- the polygraph condition helped to monitor dition violates the eighth amendment to the compliance with certain other conditions United States Constitution has yet to be imposed by the trial court, to wit, restricting

the defendant’s contact with young children. , conclusively resolved. AND The Court also noted that because this con- C

2. Polygraphs dition was aimed at deterring and discover- IN HANGES ing criminal conduct most likely to occur Another recent trend in the imposition of during unsupervised contact with minors, certain conditions of release is the require-

the condition was reasonably related to S

ment that a probationer or parolee submit TATUS future criminality. Thus the appellate court to a polygraph examination. This condition approved the imposition of this condition has been increasingly utilized throughout for reasons other than to further the treat- the country, especially for sex offenders. ment of the probationer and rejected his Courts have generally considered the use of contention that this modified condition was polygraphs for three purposes: (1) as an aid invalid. to treatment or counseling; (2) as a means to enforce other conditions of supervision 3. Work as a Condition—Paid or Unpaid imposed by the court or parole board; and Volunteer (3) as an investigative tool to detect the commission of further crimes. Although It is a common practice to require proba- courts in a number of jurisdictions have tioners or parolees to hold employment approved the use of polygraphs as a condi- and/or perform community service work. tion of release, courts have not necessarily While such conditions are routinely upheld, approved their use for all of the above-stated they create potential liability issues. In the purposes. Some courts have limited the use case of a paid employee who is injured or of polygraphs only as an aid to further the causes injury on the job, normal rules of rehabilitative treatment of an offender, while respondeat superior, to wit, that the superior other courts have condoned the use of poly- is responsible for what a subordinate does, graphs for much more expansive purposes. may create liability.

One court case that has recently ruled on However, in the case of a volunteer work the use of polygraph examinations as a con- assignment, who would be liable? Volunteers dition of probation and has approved its may not be covered by community agency use for all of the above-stated purposes is ex liability or medical insurance. Workmen’s parte Renfro.52 In this case, the defendant was compensation protection may not apply to 53 on probation for the offense of indecency volunteers. Ohio requires offenders to pay with a child. Midway through the term of a fee for liability insurance. Minnesota statu- his probation, the trial court modified his torily covers probationers under a state com- 54 conditions by requiring him to submit to a pensation plan for injured workers. Texas, polygraph examination every 6 months. The on the other hand, specifically excludes pro- defendant appealed the imposition of this bationers performing community service from worker’s compensation coverage.55 97 Where the court requires work as a condi- condition of probation or parole would tion, judges are usually protected from lia- deem that condition too vague for enforce- bility by an absolute immunity. Parole boards ment purposes varies from jurisdiction to enjoy a qualified immunity. Probation and jurisdiction. Nevertheless if a parole or pro- parole officers share those immunities insofar bation officer is unable to make an objective as they are exercising professional discretion. and reasonable interpretation of a condition, then that officer should petition the court While there is as yet no precedent for guid- or parole board imposing that condition to ance, it is likely that a community service clarify its meaning and possibly to modify volunteer could do grievous harm to a party the condition in order to remove any vague- who could then find no defendant capable of ness or ambiguity about it. Nevertheless, no redressing the injury. Would a probation or matter how clearly an officer understands parole officer be liable for arranging a place- the tenor of the condition, if the officer does ment without also arranging for insurance not convey that understanding of the condi- protection? Would failure to insure or to tion to the person the officer is supervising make placements in an agency insuring volun- and ascertain that the offender understands teers be considered ministerial and, thereby, what is expected of him or her, then it is unprotected by traditional legal principles of doubtful that an appellate court would immunity? To avoid potential liability, pro- uphold any sanction imposed by the sen- bation agencies might purchase insurance tencing court or parole board for a viola- to cover volunteer work by offenders. tion of that condition. (see section IV, Explanation of Conditions, in this chapter). ■■■ B. Reasonableness III. VAGUENESS AND In addition to the requirements that a con- REASONABLENESS AS dition be related to rehabilitation of the offender and that it not unduly interfere LIMITATIONS with constitutional rights, the courts seem

UPERVISORS to insist that a challenged condition meet a S A. Vagueness general test of reasonableness before it can be enforced. “Reasonable” may vary from Courts have settled on no standard for inter-

FFICERS AND jurisdiction to jurisdiction. For example, O preting ambiguous conditions. Because such some jurisdictions hold that if the condition conditions may impinge upon constitutional AROLE does not directly relate to the offense for /P rights, probationers and parolees (or their which the offender was convicted, the con- attorneys) may seek interpretation from pro- dition cannot be imposed.56 Other jurisdic-

ROBATION bation and parole officers. Judicial review of P tions allow more leeway for the imposition conditions, usually in the context of revoca- of conditions, especially if those conditions tion hearings, will generally incorporate offi- directly or indirectly contribute to the reha- SSUES FOR I cers’ interpretations of conditions. Officers, bilitation of the offender.57

EGAL therefore, would find it useful to make a L written record of their interpretations or, in The following conditions have fallen, appar- THER

O order to prevent the need for judicial review, ently because there is such a test: to request the sentencing court or parole board imposing the vague condition for an 1. A probationer was ordered to abstain interpretation. from alcohol for 5 years. Evidence that IABILITIES AND L he was an alcoholic led the court to deny IVIL

C The degree in which an appellate court probation revocation when the condition reviewing the imposition of a particular 58 98 was violated. CHAPTER 2. A former serviceman convicted of accept- Even if there is a duty to explain conditions ing kickbacks was placed on probation on sufficiently to assist the offender in avoiding condition that he forfeit all personal assets unintentional violations, the scope of the and work without compensation for 3 duty is apt to be limited by a reasonableness 7 C

years, or 6,200 hours. The condition was concept. It is not likely, for example, that the ONDITIONS struck down as unduly harsh in its cumu- officer will be required to anticipate and warn lative effect.59 against every possible type of violation. In a

Ninth Circuit case in which revocation of , M 3. A probationer was ordered to reimburse

probation was being appealed, the probationer ODIFICATIONS the government for the cost of court- defended his actions in part by asserting that appointed counsel and a translator. The he had no specific notice that training foreign condition was held unconstitutional military personnel would be charged as a because it was not made excusable if the ,

violation of conditions (it was admitted that AND probationer lacked the ability to pay.60 no law was violated, technically). The court C

4. A probationer was ordered as a condition of appeals was satisfied that the comments IN HANGES of probation to maintain a clean house of the judge condemning the probationer’s and to keep her children clean. This con- former life as a mercenary, together with the

dition was struck down because it did not probation officer’s warning to get rid of his S TATUS relate to the defendant’s behavior, which guns and other comments, were sufficient to gave rise to her conviction for larceny and notify the probationer of what behavior was drug crimes.61 expected of him while on probation.65

■■■ ■■■ IV. EXPLANATION OF V. MODIFICATIONS CONDITIONS OF CONDITIONS

robationers and parolees must have odifications of the conditions of proba- Pknowledge of the conditions they are M tion or parole usually occur whenever expected to follow. Case law suggests the there is a change in circumstances involving wisdom of establishing the regular practice the person under supervision. The court or of providing the offender with a copy of the parole board may impose a modified condi- release conditions.62 But courts will generally tion of probation for rehabilitative purposes infer a condition prohibiting criminal acts.63 (e.g., to address a previously unidentified or new need of the probationer or parolee), or One case speaks to the issue of explanation for punitive purposes (e.g., to apply a sanc- of conditions, distinguishing that duty tion for a violation of the initial conditions from that of merely informing. In Panko v. of probation or parole). Another reason the 64 McCauley, a condition was held to be uncon- modifications may occur is to resolve any stitutionally vague as applied to the petitioner. ambiguity in a previously imposed condi- The condition forbade the petitioner from tion. Finally, certain conditions may have to “frequenting” establishments selling alco- be modified to conform to a newly enacted holic beverages. The condition was struck legislative enactment (e.g., a new sex offender down, since there was no evidence that the registration requirement). petitioner understood that the term “fre- quent” meant “visit.” This case implies that Modification may be requested by the per- there may be a duty to explain conditions. son under supervision or by the field officer assigned the case by the supervisory court 99 or parole board. In lesser instances, the modified or changed, but unless otherwise modification may be initiated by the super- clearly authorized, only the judge or board visory court or the parole board on its own. should make that change. If change or mod- Modification may be toward easing con- ification by the officer is unavoidable (either ditions, or toward adding, clarifying, or because that judge insists on such delegation extending them. Typically, field officers despite invalidity or because of emergency seek additional restrictions or increased conditions), the officer is best protected supervision to enhance the likelihood of against liability by putting the modification the offender’s progress. or change in writing and making sure that the offender accepts the condition in writ- Because parole and probation officers may ing. Once this is done, a copy should be regularly initiate revocation hearings, it is sent to the judge or board to inform this normally assumed such officers have the authority of the change. right to suggest the need for modification or change of conditions to the court or the In sum, officers should not modify or change parole board. In a few jurisdictions, parole conditions unless clearly authorized by law or and probation officers themselves have the court decisions. As much as possible, modi- power to modify conditions. In these juris- fications or changes must be done by the dictions, the officer may go ahead and mod- judge or court because they enjoy absolute ify the conditions, but only if it is clear immunity, whereas the officer does not. that authority to modify conditions is given to the officer. In the past, the National There appear to be no clear due process Advisory Commission on Criminal Justice standards for modification. Case law sug- Standards and Goals has recommended that gests notice is probably necessary; however, parole officers be authorized to carry out it is ambiguous as to the right to a hearing.68 their requested modifications pending parole In those instances in which a hearing may board approval.66 be required, state statute usually imposes this mandate.69 Moreover, whether there Most jurisdictions, by either legislation or must be a showing that the offender violated UPERVISORS

S court decisions, do not authorize officers to one or more of the conditions imposed in modify conditions on their own. Since this order to modify the conditions of supervi- act is generally considered a judicial or board sion or whether the sentencing court or

FFICERS AND function, most jurisdictions in the country parole board may do so upon a determina- O hold that, absent an express statutory author- tion that such a modification would be in

AROLE ization to the contrary, any modification by the best interests of the offender or society /P an officer would be an improper delegation is largely controlled by state law.70 Whether of authority.67 In reality, however, many a liberty interest may be at stake is as yet ROBATION P judges do in fact delegate to the officer the untested except by analogy to the weak power to modify or change conditions, or to authority of the rescission cases.

SSUES FOR specify the details of an imposed condition I (such as the need for psychological treatment). As parole and probation officers raise their EGAL L It is also a common practice for judges to professional standards, the possibility of an

THER provide that the probationer may be subject implied duty to seek modification may arise. O “to such other conditions as the probation If, for example, a probationer or parolee is officer may deem to impose.” obviously in need of a different supervision than that originally deemed appropriate, a IABILITIES AND

L Modifying or changing probation conditions resulting victim—injured by the inadequate-

IVIL by the officer alone, without authorization, ly supervised offender—may allege that C must be avoided if at all possible. It is proper failure to seek modification is an act of neg- 100 for the officer to suggest that conditions be ligence, implying liability. For this reason, CHAPTER it is crucial for officers to be aware of the or a probationer who seeks continuances supervisory authority granted them by their that delay the hearing,73 is not permitted to particular jurisdiction. object that the proceedings and decision are untimely. Similarly, a New Jersey court held 7 C

■■■ that the time for revoking New Jersey parole ONDITIONS was extended during the period the offender VI. EXTENSION was serving a New York sentence imposed

while the offender was on parole, even though , M

the New York court made the sentence con- ODIFICATIONS onviction of an offense allows the state current with the original New Jersey sentence.74 Cto intervene in the offender’s life in specific ways authorized by statute. These An issue also arises when a new sentencing limits are in general rigidly observed because law comes into effect after an offender’s con- , AND of the severe nature of the infringements viction. Here, a different result is apt to occur. they impose on the rights of individuals. A 75 C

For example, California courts have held IN HANGES corollary of this rule is that once service of that new penal laws extending the period of sentence has begun, it is not subject to detri- parole supervision may not be given retroac- mental modification (absent special circum-

tive effect, at least for those paroled under the S

71 TATUS stances not relevant here). It also follows more favorable terms of prior law. To do oth- that once a sentence has been served, juris- erwise would run afoul of the ex post facto diction is lost over the offender. clause of the Constitution, the courts said.

To what extent do grants of probation and ■■■ parole provide authority to prolong a period of actual confinement beyond the duration originally set? One possibility, which the VII. TERMINATION courts have not adopted, is to consider probation and parole time as the equivalent of he federal parole law provides that confinement, thus freeing the offender at T parole does not end automatically at the end of the original period. While the the conclusion of the term ordered, but con- states vary on the extent to which they give tinues until affirmatively granted after a ter- credit for street time against the period of mination hearing. The statute provided the actual confinement, there is agreement that hearing had to be held within 5 years when entry into probation or parole status extends Robbins v. Thomas76 arose. In that case, the the time during which consideration may hearing was 51/2 years after parole was grant- be given to imprisoning or reimprisoning ed. On the day after the hearing, but before the offender. the parole commission made a decision on termination, Robbins was arrested on a new The question concerning what authority charge. The parole commission reopened its the court or parole board has to take action file to give consideration to this fact and against an offender after the period of super- decided to extend parole. Robbins argued vision has expired arises in several situations. that the commission was without power to In one, proceedings are begun to revoke pro- consider anything occurring after 5 years or, bation or parole within the probation or in any event, after the termination hearing. parole term. In this case, even when the pro- The Ninth Circuit Court of Appeals dis- ceedings are not completed within the usual agreed, finding that until actual termina- period, the new decision is given effect as tion the commission could—indeed, was long as the delay was not due to a lack of expected to—consider relevant evidence. diligent prosecution on the state’s part. Thus, 72 a parolee who absconds from supervision, 101 The court went on to rule that the proce- the offender that requires the offender to dures to be followed in such cases were report to the officer or agency any changes equivalent to those provided for revocation in the offender’s status. Courts have deemed hearings. While the decision not to termi- that such an administrative policy does not nate parole does not deprive a parolee of his constitute an improper usurpation of judi- conditional liberty, which would activate cial or board authority but, instead, have Morrissey rights, the statute appears to make held that such a policy is reasonably and termination automatic in the absence of an necessarily related to the authority of the affirmative finding that the parolee is unlikely supervising agency to enforce the conditions to respect the law. Thus, there is more than imposed by the court or board. a “mere expectation” of the termination benefit, and some process is clearly due. Other Finally, a state statute may mandate that a courts could well choose a less-than-Morrisey probationer or parolee (or his or her super- standard, however. vision officer) provide notification of any change in his or her status. State legislatures ■■■ increasingly have been enacting notification statutes requiring sex offenders to provide information on any change in their status. VIII. CHANGES IN For example, the State of Texas has passed a STATUS OF THE statute providing that if a juvenile or adult probation officer or a parole officer super- OFFENDER vising a person required under state law to register as a sex offender receives informa- enerally there are three legal avenues tion to the effect that the person’s status has G under which a probationer or parolee changed in any manner that affects proper may be required to provide notice of a change supervision of the person, including a of status. An offender may be required to change in the person’s physical health, job provide information regarding a change of status, incarceration, or terms of release, the status either (1) as a condition of release or supervising officer shall promptly notify an UPERVISORS

S (2) pursuant to a departmental policy of the appropriate local law enforcement authority supervising agency. Third, an offender may of that change.78 Because of the inherent be required to provide notification of a sensitivity of information bearing on the sta-

FFICERS AND change in status in accordance with a statu-

O tus of an offender, it is strongly recommend- tory mandate. These notification require- ed that probation and parole officers strictly

AROLE ments may require a probationer or parolee

/P follow the mandates established by a statute, to report status changes either to the court court order, or administrative policy regard- or parole board, the officer supervising the ing the release of any information concern- ROBATION P offender, or even to a third party.77 ing a change in status and do not deviate from the statutory, judicial, or office proce- Ordinarily, conditions requiring a proba- SSUES FOR

I dures controlling the disclosure of such tioner or parolee to report changes of status information. EGAL

L have been upheld on appeal. This is especial-

THER ly true if the condition requires the offender ■■■ O to report changes in status that may have a bearing on the enforcement of the other conditions of supervision or may affect the SUMMARY IABILITIES AND

L likelihood of successfully rehabilitating the his chapter has examined several issues IVIL offender. In addition, Courts have generally C approved an administrative policy estab- T concerning the setting of conditions of 102 lished by the officer or agency supervising probation and parole. While there is rarely CHAPTER any dispute concerning conditions, problems to provide information concerning any change can arise when a special condition either in their status. Finally, supervision officers infringes upon a fundamental constitutional must exercise extreme caution in disclosing right or is not clearly associated with a reha- information regarding the change in status 7 C bilitative purpose. The so-called fundamental of a probationer or parolee. ONDITIONS rights, such as “free speech” and “free exercise of religion” are given special treatment Notes by the Courts. , M 1. See United States v. Consuelo-Gonzales, ODIFICATIONS In the view of the United States Supreme 521 F.2d 259 (9th Cir. 1975). See also, Poth v. Court, any right so essential to our concept Templar, 453 F.2d 330 (10th Cir. 1971). of liberty that to do away with it would fun- 2. See State v. Maas, 41 Or. App. 133, 597 P.2d damentally alter our political and social sys- , 838 (1979), where the Oregon Court ruled that AND tem is a fundamental right. Restrictions in

a probation condition added by a probation C

these areas will always be considered “suspect”; IN HANGES officer could not serve as the basis for revoca- that is, such conditions will be given a stricter tion because the officer had no authority to review than other restrictions. Often valida- add conditions.

tion of a condition is dependent upon sup- S TATUS plying the reviewing court with sufficient 3. See Morrissey v. Brewer, 408 U.S. 471 (1973). information to link the government’s interest in rehabilitation with the challenged condition. 4. See Lacy v. State, 875 S.W.2d 3 (Tex. App. Tyler, 1994). A few jurisdictions authorize officers to modify or change conditions, but most 5. On December 31, 1998, approximately jurisdictions do not. Unless clearly author- 3,417,600 adults were under federal, state, ized by law or court decisions, an officer or local jurisdiction on probation and nearly should not modify or change conditions 705,000 were on parole. See Probation and because possible liability attaches should Parole Statistics, Bureau of Justice Statistics, such conditions turn out to be unconstitu- U.S. Department of Justice, at www.ojp.usdoj. tional or injurious to the offender or a gov/bjs/pandp.html. third party. 6. See Knight v. State, 593 So. 2d 1202 (Fla. No clear due process standards have been App. 1992), in which a Florida appellate court set for modification, but case law suggests that ruled that a probation condition requiring the notice is probably necessary. Moreover, exten- probationer “to show respect to officers connect- sions of probation or parole are generally ed with the criminal justice system” was too frowned upon because they constitute further vague to inform the probationer of what conduct deprivations of freedom. Also, when proba- was acceptable or unacceptable. tion/parole actually terminates is governed by state law, not by a constitutional standard. 7. See Morrissey v. Brewer, 408 U.S. 471 (1973).

Reporting requirements necessitating that 8. The United States Supreme Court has recog- a probationer or parolee inform either his nized that even in a prison setting, inmates still supervision officer or the court or parole retain certain fundamental rights. In Wolff v. board of a change of status have generally McDonnell, 94 S. Ct. 2963 (1974), the Supreme been deemed a valid exercise of the authority Court stated that “though his rights may be of the court/parole board or supervisory diminished by the needs and exigencies of the agency. Nevertheless, probation and parole institutional environment, a prisoner is not officers need to be aware of any statutory wholly stripped of constitutional protections mandates requiring probationers or parolees when he is imprisoned for a crime.” 103 9. Sobel v. Reed, 327 F. Supp. 1294 (S.D.N.Y. 24. See United States v. Bird, 124 F.3d 667 (5th 1971). Cir. 1997). See also, Crabb v. State, 754 S.W.2d 742 (Tex. App. Houston [1st Dist.], 1988). 10. Id. at 1304. 25. See Rich v. State, 640 P.2d 159 (Alaska Ct. 11. Id. at 1303. App. 1982); Whitehead v. State, 645 S.W.2d 482 (Tex. Crim. App. 1982); People v. Warren, 89 12. Id. at 1306. App. Div. 501, 452 N.Y.S.2d 50 (1982).

13. Hyland v. Procunier, 311 F. Supp. 749 (N.D. 26. See Watson v. State, 17 Md. App. 263, 301 Cal. 1970). See also, United States v. Lowe, 654 A.2d 26 (1973); Glenn v. State, 168 Tex. Crim. F.2d 562 (9th Cir. 1981); Barlip v. Commonwealth 112, 327 S.W.2d 763 (1959); Dulin v. State, Board of Probation and Parole, 45 Pa. Commnw. 169 Ind. App. 211, 346 N.E.2d 746 (1976). 458, 405 A.2d 1338 (1979); State v. Camp, 59 N.C. App. 38, 295 S.E.2d 766 (1982). 27. See O’Lone v. Estate of Shabazz, 107 S. Ct. 2400 (1987). 14. 311 F. Supp. 749 (N.D. Cal. 1970) at 750. 28. See Jones v. Commonwealth, 185 Va. 335, 15. Id. at 750-751. 38 S.E.2d 444 (1946). See also, L.M. v. State, 587 So. 2d 1202, (Fla. App. 1992). 16. Porth v. Templar, 453 F.2d 330 (10th Cir. 1971). 29. Warner v. Orange County Department of Probation, No. 1760 (2d Cir. 1996), decided 17. Note, Fourth Amendment Limitations on September 9, 1996. Probation and Parole Supervision, 1976 Duke L. J. 71, 75 (1976). 30. See Griffin v. Coughlin, WL 317180 (N.Y. June 11, 1996), in which the New York Court of 18. Porth v. Templar, 453 F.2d at 76. Appeals made a ruling similar to that of the 2d Court of Appeals in Warner v. Orange County. 19. Porth v. Templar, 453 F.2d 330, 334 (10th

UPERVISORS Cir. 1971). Accord, United States v. Patterson, S 31. See West v. State, 160 Ga. App. 855, 287 627 F.2d 760 (5th Cir. 1980), cert. denied, 101 S.E.2d 694 (1982). See also State v. Martin, 282 S. Ct. 1378 (1981). Or. 583, 580 P.2d 536 (1978); In re Peeler, 266 FFICERS AND

O Cal. App. 2d 483, 72 Cal. Rptr. 254 (1968); and 20. United States v. Furukawa, 596 F.2d 921 State v. Thomas, 428 So. 2d 950 (La. Ct. App.

AROLE (9th Cir. 1979).

/P 1983). 21. United States v. Tonry, 605 F.2d 144 32. See State v. Livingston, 53 Ohio App. 2d ROBATION (5th Cir. 1979). P 195, 372 N.E.2d 1335 (1976); Skinner v. 22. Commonwealth of Massachusetts v. Power, Oklahoma, 316 U.S. 535 (1942); People v. SSUES FOR I 420 Mass. 410, 650 N.E.2d 87 (1995). Dominguez, 256 Cal. App. 2d 623, 64 Cal. Rptr. 290 (1967). EGAL L 23. United States v. Crandon, 173 F.3d 122 (3d

THER Cir. 1999). See also, State v. Riley, 121 Wash. 2d 33. See Wiggins v. State, 386 So. 2d 46 (Fla. O 22, 846 P.2d 1365 (1993), where the appellate Dist. Ct. App. 1980); Michalow v. State, 362 court approved the imposition of a condition of S.2d 456 (Fla. Dist. Ct. App. 1978). probation forbidding the defendant, convicted of IABILITIES AND

L 34. See People v. Dominguez, 256 Cal. App. 2d computer trespass, from associating with other

IVIL 627. 64 Cal. Rptr. 290 (1967). See also, L.M. v.

C computer hackers and communicating with State, 587 So. 2d 1202 (Fla. App. 1992). computer bulletin boards. 104 CHAPTER 35. People v. Pointer, 199 Cal. Rptr. 357 43. United States v. Conforte, 624 F.2d 869 (Cal. App. 1st Dist. 1984). (9th Cir.), cert. denied, 449 U.S. 1012 (1980).

36. Thomas v. State, 519 So. 2d 1113 (Fla. App. 44. United States v. McDonough, 603 F.2d 19 7 C

1st Dist., 1988). (7th Cir. 1979). See also, State ex rel. Halverson ONDITIONS v. Young, 278 Minn. 381, 154 N.W.2d 699 37. People v. Ferrell, 659 N.E.2d 992 (Ill. App. (1967); Flick v. State, 159 Ga. App. 6778, 285 4th Dist. 1995).

S.E.2d 58 (1981); State v. Gilliam, 274 S.C. , M

324, 262 S.E.2d 923 (1980); Carchedi v. ODIFICATIONS 38. U.S. v. Smith, 972 F.2d 960 (8th Cir. 1992). Rhodes, 560 F. Supp. 1010 (S.D. Ohio 1982).

39. State v. Kline, 963 P.2d 697 (Or. App. 45. Minnesota v. Murphy, 104 S. Ct. 1136 1998). See also, Krebs v. Schwartz, 568 N.W.2d

(1984). , 26, 212 Wis. 2d 127 (Wis. App. 1997), where AND

the appellate court approved a condition requir- 46. For examples of the problems courts have C AGSIN HANGES ing a defendant convicted of sexually assaulting had in resolving this matter, see Asherman v. his daughter to discuss and obtain permission Meachum, 957 F.2d 978 (2d Cir. 1992); United from his probation officer prior to engaging in States v. Ross, 9 F.3d 1182 (7th. Cir. 1993), S a sexual relationship. judgment vacated on other grounds, 511 U.S. TATUS 1124 (1994); and Idaho v. Crowe, 952 P.2d 40. People v. Baum, 251 Mich. 187, 231 1245 (Idaho 1998). N.W.95 (1930) (banishment from state for 5 years); People v. Smith, 252 Mich. 4, 232 47. Goldschmitt v. State, 490 So. 2d 123 (Fla. N.W.397 (1930) (move to another neighbor- Dist. Ct. App. 1986). See also, Lindsay v. State, hood). See also, State ex rel. Halverson v. Young, 606 So. 2d 652 (Fla. App. 4th Dist. 1992). 278 Minn 381, 154 N.W.2d 699 (1967); Flick v. State, 159 Ga. App. 678, 285 S.E.2d 58 (1981), 48. Ballenger v. State, 436 S.E.2d 793 State v. Gilliam, 274 S.C. 324, 262 S.E.2d 923 (Ga. App. 1993). (1980); Carchedi v. Rhodes, 560 F. Supp. 1010 (S.D. Ohio 1982). 49. People v. Heckler, 16 Cal. Rptr. 2d 681, 13 C.A. 4th 1049 (1993). 41. Hernandez v. State, 613 S.W.2d 287 (Tex. Cr. App. 1981). See also, Martinez v. State, 627 50. People v. Meyer, 176 Ill. 2d 372, 680 N.E. So. 2d 542 (Fla. App. 1993). 315 (1997).

42. Berrigan v. Sigler, 358 F. Supp. 130 (D.D.C. 51. People v. Letterlough, 655 N.E.2d 146 1973), aff’d 499 F.2d 514 (D.C. Cir. 1974). See (N.Y. 1995). also, Dukes v. State, 423 So. 2d 329 (Ala. Crim. App. 1982) (person convicted of theft from cer- 52. Ex parte Renfro, 999 S.W.2d 557 (Tex. App. tain store ordered to stay out of that store during Houston [14th Dist.], 1999). Other jurisdictions probation term); State v. Churchill, 62 N.C. that have upheld the validity of polygraph exami- App. 81, 302 S.E.2d 290 (1983) (cab driver nations as a condition of probation where the guilty of trespassing at bus station ordered to stay probationer is convicted of a sex crime are as fol- away from bus station and adjoining restaurant lows: State v. Lumley, 267 Kan. 4, 977 P.2d 914 unless traveling by bus with permission of proba- (1999); Cassamassima v. State, 657 So. 2d 906 tion officer). But, see, In re White, 97 Cal. App. (Fla. Dist. Ct. App. 1995); State v. Tenbusch, 3d 141, 158 Cal. Rptr. 562 (1979) (affirming, 131 Or. App. 634, 886 P.2d 1077, cert. denied, under the California Constitution, the “basic 116 S. Ct. 133 (1995); and People v. Miller, 208 human right” of intrastate travel). Cal. App. 3d 1311, 256 Cal. Rptr. 587 (Cal. Ct. App. 1989). 105 53. Ohio Rev. Code Ann. Sec. 2951.02 (g). 765 (1982) (past experiences on parole or probation source of knowledge of condition requiring 54. Minn. State. Ann. Sec. 3.739 (West). obedience to law). But, see also, Neely v. State, 7 Ark. App. 238, 647 S.W.2d 473 (1983), contra 55. Vernon’s Tex. Ann. Code Crim. Proc., art. (probationer not given list of conditions barring 42.12, sec. 16(c). illegal act).

56. See Turner v. State, 666 So. 2d 212 (Fla. 64. Panko v. McCauley, 473 F. Supp. 325 (C.D. App. 2d Dist. 1995), in which the appellate Wisc. 1979). Information as well as explanation court held that the trial court could not order are statutorily required in some jurisdictions. See, the defendant to submit to drug evaluation and e.g., Mo. Ann. Stat. Sec. 549.237 (Vernon); N.Y. treatment for an offense that was not alcohol or Exec. Law Sec. 257(4) (McKinney). drug related. 65. United States v. Dane, 570 F.2d 840 (9th 57. See Vernon’s Annotated Texas Code of Cir. 1977). See also, United States v. Dane, 587 Criminal Procedure, art. 42.12, sec. 11(a), which F.2d 436 (9th Cir. 1978). authorizes the trial court to impose any reasonable condition that is designed to protect or 66. National Advisory Commission on Criminal restore the community; protect or restore the Justice Standards and Goals, Corrections, victim; or punish, rehabilitate, or reform the Standard 12.7 (1973). defendant. 67. See In the interest of T.L.D., 586 So. 2d 58. Sweeny v. United States, 353 F.2d 10 (7th 1294 (Fla. App. 1991). Cir. 1967). See also, Turner v. State, 666 So. 2d 212 (Fla. App. 2d Dist. 1995). 68. See United States v. Warden, 705 F.2d 189 (7th Cir. 1983), Forgues v. United States, 636 59. Higdon v. United States, 627 F.2d 893 (9th F.2d 1125 (6th Cir. 1980); Tyra v. State, 644 Cir. 1980). Compare, United States v. Arthur, S.W.2d 865 (Tex. Crim. App. 1982); In re 602 F.2d 660 (4th Cir.), cert. denied, 444 U.S. Appeal in Rinal County, Juvenile Action, 131 992 (1979) (former bank president who misap- Ariz. 187, 639 P.2d 377 (Ct. App. 1981); State v. UPERVISORS S plied bank funds properly required to accept Simpson, 2 Ohio App. 3d 40, 440 N.E.2d 617 employment without salary for 2 years). (1981); State v. Coltrane, 307 N.C. 511, 299 S.E.2d 199 (1983); Kelly v. State, 627 S.W.2d FFICERS AND

O 60. United States v. Jiminez, 600 F.2d 1172 (5th 826 (Tex. Crim. App. 1982). Cir.), cert. denied, 444 U.S. 903 (1980). See also, AROLE

/P State v. Asher, 40 Or. App. 455, 595 P.2d 839 69. See Russo v. State, 603 So. 2d 1353 (1979); State v. Langford, 12 Wash. App. 228, (Fla. App. 1992).

ROBATION 529 P.2d 839 (1974). P 70. See Malone v. State, 632 So. 2d 1140 61. State v. Graham, 636 A.2d 852, 33 Conn. (Fla. App. 1994). SSUES FOR

I App. 432 (1994). 71. See 541 F. Supp. 1253 (1st Cir. 1982); 560 F. EGAL L 62. Bennett v. State, 164 Ga. App. 239, 296 Supp. 745 (2d Cir. 1983); 670 F.2d 507 (5th

THER S.E.2d 787 (1982); Acosta v. State, 640 S.W.2d Cir. 1982); 699 F.2d 822 (6th Cir. 1983); 681 O 381 (Tex. Crim. App. 1982); Meredith v. Raines, F.2d 1091 (7th Cir. 1982); 699 F.2d 387 (7th 131 Ariz 244, 640 P.2d 175 (1982) (oral notice Cir. 1983); 555 F. Supp. 1344 (7th cir. 1983); of parole conditions permissible, but must be 706 F.2d 1435 (7th Cir. 1983); 718 F.2d 921 IABILITIES AND

L written notice for probation conditions). (9th Cir. 1983); 534 F. Supp. 1015 (9th Cir.

IVIL 1982); 678 F.2d 940 (11th Cir. 1982); 682 F.2d C 63. See Joynes v. State, 437 N.E. 137 (1982); 1366 (11th Cir. 1982). 106 Shaw v. State, 164 Ga. App. 208, 296 S.E.2d CHAPTER 72. People ex rel. Flores v. Dalsheim, 66 A.2d 76. Robbins v. Thomas, 592 F.2d 546 (9th Cir. 381, 413 N.Y.S.2d 188 (1979). 1979).

73. State v. Hultman, 92 Wash. 2d 736, 600 77. For example, in People v. Gould, 662 7 C

P.2d 1291 (1979). N.Y.S.2d 520 (N.Y.A.D. 2 Dept. 1997), the ONDITIONS appellate court approved the imposition of a 74. Board of Trustees v. Smalls, 172 N.J. Super. condition on a probationer convicted of sodomy 1, 410 A.2d 691 (1979).

that he notify future employers of his conviction , M

if he changes employment. ODIFICATIONS 75. In re Bray, 97 Cal. App. 3d 506, 158 Cal. Rptr. 745 (1979); Matter of Harper, 96 Cal. 78. See Vernon’s Annotated Texas Code of App. 3d 138, 157 Cal. Rptr. 759 (1979). Criminal Procedure, chapter 62.05(a). , AND C AGSIN HANGES S TATUS

107

CHAPTER 8 Supervision

INTRODUCTION

I. SEARCH AND SEIZURE ISSUES IN SUPERVISION

A. Griffin v. Wisconsin Is the Leading Case B. Validity of Search as a Condition of Supervision C. Warrantless Searches Conducted Without a Condition or Regulation D. Problems With Searches Resulting From Police/ Supervision Officer Collaboration 1. Police Searches Conducted With Probation/Parole Officers 2. Searches Conducted by Police Officers Alone E. State Standards of Reasonableness for Conducting a Search

II. PROBATION/PAROLE OFFICERS AND FIREARMS

III. DUTY TO THE OFFENDER NOT TO DISCLOSE INFORMATION

A. The Case of Fare v. Michael C. Says There Is No Privileged Communication Between Probation Officer and Offender B. Invasion of Privacy C. Libel and Slander D. No Tortious Interference With a Contract If Disclosure Is Justified E. Federal Rules of Confidentiality HPE 8 CHAPTER IV. LIABILITY FOR FAILURE TO DISCLOSE OFFENDER BACKGROUND INFORMATION TO THIRD PARTIES

A. The “Public Duty Doctrine” Generally Precludes Liability B. There Might Be Liability If a “Special Relationship” Exists 1. Reasonably Foreseeable Risk 2. Reliance C. Cases Involving Parole Officers D. Cases Involving Probation Officers

V. OTHER SUPERVISION ERRORS

VI. DO OFFENDERS HAVE AN ENFORCEABLE RIGHT TO TREATMENT PROGRAMS?

VII. REPORTING VIOLATIONS

VIII. RESTITUTION COLLECTION

IX. SHOULD THE PROBATION OFFICER GIVE THE PROBATIONER MIRANDA WARNINGS WHEN ASKING QUESTIONS CONCERNING A CRIMINAL OFFENSE?

X. RECENT JUDICIAL DECISIONS CONCERNING LIABILITY OF PROBATION AND PAROLE OFFICERS FOR SUPERVISION

A. Negligent Supervision B. Immunity Defenses

SUMMARY

NOTES INTRODUCTION A. Griffin v. Wisconsin Is the CHAPTER Leading Case ver the years, the potential liability for The fourth amendment provides: 8 a field officer for improper supervision O S of offenders has risen. Besides the more com- The right of the people to be secure UPERVISION mon concerns of improper disclosure of infor- in their persons, houses, papers, and mation regarding the offender, the validity of effects, against unreasonable searches searches and seizures, and fiduciary responsi- and seizures, shall not be violated, bilities arising from the collection of monetary and no Warrants shall issue, but upon payments from offenders, there has been an probable cause, supported by Oath or increasing concern for liability issues arising affirmation, and particularly describing from the improper or negligent supervision the place to be searched, and the per- of offenders. Under certain circumstances, sons or things to be seized. not only may offenders file civil suits against an officer but also even victims of crimes Before 1987, various courts had grappled may potentially assert a civil claim against an with the issue concerning whether warrant- officer. This chapter examines these issues. less searches and seizures could be performed on probationers and parolees and whether ■■■ searches could be conducted on a standard of less than probable cause.

I. SEARCH AND Courts that had allowed searches of proba- SEIZURE ISSUES IN tioners and parolees had done so based on a number of legal theories. A 1976 law review SUPERVISION commentary observed that “in the past, courts have relied on express waivers by earches and seizures raise issues of impor- parolees or probationers, or have invoked S tant concerns for field officers who are the ‘act of grace’ and ‘constructive custody’ supervising offenders. These concerns focus doctrines in order to strip released offenders on the conditions of supervision requiring of virtually all the fourth amendment guar- released offenders to waive fourth amendment antees afforded ordinary citizens.”1 Despite protections regarding searches and seizures these various legal justifications that had and on the legality of conducting warrant- been advanced by certain lower courts, it less searches of offenders in the absence of was not until 1987 that the United States a condition authorizing an officer to do so. Supreme Court examined this area involving Such concerns appear fully justified by the fourth amendment rights. complexity of the law in this area and by the frequency with which a search problem may In 1987, the Supreme Court came up with be encountered. Officers need to be knowl- a decision that clarified this issue. In Griffin edgeable about applicable search and seizure v. Wisconsin,2 a defendant who had a prior law in their jurisdictions; parole and proba- felony conviction was convicted of resisting tion agencies must keep track of develop- arrest, displaying disorderly conduct, and ments in this area and provide training on obstructing an officer, and the defendant an ongoing basis. was placed on probation. While the defendant was on probation, a probation officer received information from a detective that

111 the defendant had a gun in his apartment. need to obtain a warrant in order to conduct A warrantless search did, in fact, reveal a a search of the probationer’s home. handgun at the apartment. Consequently, the defendant was convicted of the offense The Court further found that these special of possession of a firearm by a convicted needs of the state justified a departure from felon and sentenced to 2 years in prison. the requirement that a search be based on probable cause. The Court stated that the Under Wisconsin law, probationers were special need to supervise a probationer per- placed in the custody of the State Department mitted a degree of infringement upon the of Health and Social Services and made sub- privacy of the probationer. Because of the ject to conditions set by the court and to rules nature of the probation system, it was proper and regulations established by the depart- for the state to replace the probable cause ment. One of the department’s regulations standard with a “reasonable grounds” stan- permitted any probation officer to search a dard as the test for justifying the search. probationer’s home without a warrant as Moreover, the Supreme Court stated that a long as his supervisor approved and as long determination of “reasonableness” was not as there were “reasonable grounds” to believe based on a federal “reasonable grounds” stan- that contraband, including any item that the dard. Instead, reasonableness was determined probationer could not possess under the pro- by a state court’s finding that the search con- bation conditions, would be found at the formed to the regulations issued by the state. premises. Finally, the regulations set forth Since the Wisconsin state court found that what factors an officer should consider in the search was made pursuant to a valid reg- determining what constituted reasonable ulation governing probationers, the Supreme grounds. During the suppression hearing, Court held that the search of the defendant’s the trial court ruled that a search warrant residence was reasonable within the meaning was not necessary to conduct the search, of the fourth amendment. that the search itself was reasonable, and that the fruits of the search could be admit- While the Griffin decision resolved several ted as evidence in the trial. questions regarding the legality of conduct- UPERVISORS

S ing warrantless searches of probationers and The issues before the United States Supreme parolees, the Supreme Court left uncertain Court were whether a warrant was necessary other matters that remain open for further

FFICERS AND in order for the officials to conduct a search consideration. First, although the Supreme O of the probationer’s apartment and whether Court recognized a reasonableness standard

AROLE the search itself was “reasonable” for purposes for conducting warrantless searches, the Court /P of the fourth amendment to the United States did not define what constitutes “reasonable.” Constitution. The Court noted that a proba- Instead, the Court held that reasonableness ROBATION P tioner’s home, like anyone else’s, was protected would be determined by the courts in indi- by the fourth amendment’s requirement that vidual states. Thus courts have since strug-

SSUES FOR searches must be “reasonable.” However, the gled with determining what level of suspicion I Court held that a search under these circum- gives rise to a reasonable standard for justify- EGAL L stances did not need to be made pursuant to ing a warrantless search of a probationer or

THER a warrant. The Court found that the state’s parolee. Second, while the Court in Griffin O operation of a probation system presented found that Wisconsin’s regulations in ques- “special needs” beyond normal law enforce- tion permitting searches were “reasonable,” ment that could justify departures from the the Court did not address whether a court- IABILITIES AND

L usual warrant requirement and that the super- imposed condition, in lieu of an express reg-

IVIL vision of probationers constituted a “special ulation, permitting searches of probationers C need” of the state that dispensed with the or parolees would be reasonable. Finally, the 112 CHAPTER Court did not address the issue concerning [Y]ou permit search of your vehicle whether law enforcement officers could rely and place of abode where such place of on a statute, regulation, or condition for abode is legally under your control, conducting an independent search of a and seizure of any narcotic implements 8 S probationer or parolee, or whether only a and/or illegal drugs found, such search UPERVISION supervision officer, either alone or accompa- to be conducted by a Probation nied by a law enforcement officer, could Officer or a Probation Officer and conduct the search. The following sections his agent. of this chapter will discuss how courts have addressed these unresolved matters. Ten months into the probationary period, the defendant’s probation officer received B. Validity of Search as a information that the defendant was dealing Condition of Supervision drugs at his home. The probation officer, accompanied by the defendant and by police Although the United States Supreme Court officers, entered the defendant’s house. In in Griffin approved a search conducted pur- the ensuing search, the authorities discov- suant to a state regulation and not imposed ered rifles, shotguns, illicit drugs, and a as a condition of supervision, numerous scale. The defendant was subsequently courts since the Griffin decision have approved indicted on drug and weapons charges. a search conducted pursuant to a condition imposed by a court or board of parole. The defendant argued on appeal of his con- Nevertheless, a small minority of states still viction that absent a search warrant, exigent disapprove of warrantless search conditions circumstances, or a voluntary consent made imposed on probationers and parolees.3 at the time of the search, a probationer Moreover, several jurisdictions have limited could be searched only if a court had issued the scope of a search conducted pursuant a search order authorized under New York to a court order. state law. The New York appellate court noted that, unlike Griffin, the search in this Most appellate courts that have approved case was not conducted pursuant to a state of searches conducted in accordance with regulation. Nevertheless, the Court in Hale a condition imposed by a parole board or stated that the court-imposed condition car- court have based their decisions on the legal ried as great, if not greater, constitutional theory that said condition is “consensual.” weight, as a regulation. In Hale, the defen- These courts have stated that by accepting dant had agreed to the condition in order probation (or parole) in lieu of serving a to avoid a prison sentence. Moreover, the prison sentence, the offender has agreed to Court stated that this agreement was no a condition allowing a probation or parole more coercive than any other agreement officer to conduct a search of his person, made to avoid a prison sentence. Since the residence, or automobile. One recent court defendant had consented to the condition, decision that based its holding on this legal he could not now complain when drugs and 4 theory is People v. Hale. weapons were seized by a probation officer in enforcing this condition of probation. In People v. Hale, the defendant was convicted of criminally negligent homicide after Even though a court may approve a search having killed a woman in a boating accident conducted pursuant to a court-imposed while the defendant was intoxicated. The condition, some jurisdictions have neverthe- defendant entered a plea bargain agreement less limited a search to certain items, e.g., and was placed on probation. One of the illicit substances and drug paraphernalia or conditions to which the defendant agreed pornography and sexually oriented devices. was that: For example, some courts have held that a 113 search condition must be tailored to the Sometimes, the relevant condition is one offense for which the offender was granted that authorizes unannounced visits by a pro- probation.5 The Hale decision is a good bation/parole officer to the residence of an example of a case in which the court limited offender. Such a condition may be useful a search condition to a specific item, i.e., because once lawfully on the premises, the drugs. In addition, the Hale decision shows officer may see (or detect through other that if, in the course of conducting a search senses) information that activates some for a specific item, another type of contraband exception to the warrant requirement of the is discovered, this other type of contraband fourth amendment. Such a situation arose may be seized and used in a subsequent in United States v. Bradley.8 There, a Virginia criminal proceeding. parole officer received information sufficient to support a warrant that the parolee had Moreover, some appellate courts have struck a firearm in his possession. Some 6 hours down certain search conditions as being over- later, acting under a visitation condition, she broad or vague. Even in the Ninth Circuit, went to his residence and conducted a search, where a waiver condition is recognized as locating a weapon secreted in a closet. This valid, the terms of the condition must be evidence was used to convict the parolee in narrowly drawn. The court of appeals there a federal criminal trial. The Fourth Circuit disapproved as overly broad a condition that Court of Appeals reversed, holding that the appeared to extend the benefits of a federal warrant requirement was a rigid one. probation condition to all “law enforcement officers.”6 This holding was also based on We therefore hold that unless an established the coerciveness of the circumstances that exception to the warrant requirement is gave rise to a consent waiver. The condition applicable, a parole officer must secure a that was approved provided: “A probationer warrant prior to conducting a search of a must submit to a search of her person or parolee’s place of residence even where, as a property conducted in a reasonable manner condition of parole, the parolee has consent- at a reasonable time by a probation officer.”7 ed to periodic and unannounced visits by Such a condition, the court said, would meet the parole officer.9 UPERVISORS S the reasonableness requirement of the fourth amendment by properly balancing the rele- In a followup case, the Fourth Circuit vant governmental and individual interests. applied this rule to a probation revocation 10 FFICERS AND proceeding. This accords with the weight O C. Warrantless Searches of authority that search and seizure law does AROLE not apply differently in parole and probation /P Conducted Without a Condition or Regulation cases. Nevertheless if a probation or parole officer has a legitimate right to be at a cer- ROBATION P Courts across this country are almost unani- tain place (e.g., authorized to conduct a mous in holding that a warrantless search of home inspection pursuant to a condition of a probationer or parolee must be based on SSUES FOR supervision) and sees a contraband item in I some express legal authorization. Thus the plain or open sight, then the observance of EGAL L general rule is that warrantless searches can- the contraband item does not constitute a not be conducted absent an express condi- THER search, and the seizure of the item is an O tion, regulation, or statute that gives the exception to the fourth amendment’s war- supervision officer the authority to conduct rant requirement. such searches. Nevertheless there are certain

IABILITIES AND limited exceptions to this general rule. L IVIL C

114 CHAPTER D. Problems With ment officers. Second, by performing law Searches Resulting From enforcement duties, the probation/parole Police/Supervision Officer officer may be deemed to have exceeded the course and scope of his or her duties as a 8 Collaboration S

supervision officer, and thus any negligent UPERVISION One of the more significant developments in performance of the officer’s duties that arose probation and parole supervision in the last while the officer was acting as a law enforce- decade has been the increasing collaborative ment agent may result in personal liability efforts between supervision and law enforce- for the supervision officer. Two of the issues ment officers. While these collaborative involved in police/probation officer collabora- arrangements have proven to be very benefi- tion are discussed below. cial to both the probation/parole and law enforcement disciplines, such arrangements 1. Police Searches Conducted With also pose legal pitfalls. Moreover, because Probation/Parole Officers these joint efforts between police and supervision officers are a recent trend, many of Generally, a law enforcement officer must the legal issues that pertain to these collabo- comply fully with the fourth amendment rative endeavors have yet to be examined by before searching a parolee or probationer. the courts. Probation/parole officers, on the other hand, are not bound in full by the fourth amend- Since law enforcement agencies and parole ment because they are generally authorized and probation departments serve different pur- to search without a warrant or probable poses in the criminal justice system and have cause by the conditions of probation or contrasting missions, the most serious liabili- parole. Nevertheless a probation/parole offi- ty issues involving police/supervision officer cer may enlist the aid of law enforcement collaboration arise when one agent or officer personnel to expedite a search,11 subject to assumes or performs the role of the other. the limitation that the primary purpose is Although the purposes and missions between probation/parole-related and not a sub- probation/parole supervision and law enforce- terfuge for a more general law enforcement ment activity are not incompatible, they are goal. Under this situation, a police officer not synonymous either. Thus, for example, is allowed to assist in the search of a proba- there is nothing improper with a peace offi- tioner/parolee if the purpose of the police cer accompanying a probation/parole officer officer accompanying the supervision officer on a home inspection either to offer person- is to provide protection to the supervision al protection to the supervision officer or officer. Moreover, in the event that police even to question a probationer/parolee on seek to induce a probation officer to exercise matters of mutual interest to the police his or her power to search, the probation and the supervision officer. officer may accommodate the request if he or she believes the search is necessary to the However, a police officer cannot direct that proper functioning of the probation system.12 a supervision officer perform certain acts solely at the request of or for the benefit of The case that best exemplifies this general the police officer without converting that rule is United States v. Ooley.13 In this case, probation/parole officer into a law enforcement the defendant was convicted in a California agent. When this occurs, two liability con- state court of second-degree burglary and cerns arise for the probation/parole officer. placed on probation. As a condition of the First, once a probation/parole officer assumes defendant’s probation, he agreed to waive law enforcement responsibilities, then that his fourth amendment rights and to allow officer must act in accordance with the same searches to be conducted on his person, place, and automobile. Less than 6 months legal limitations that apply to law enforce- 115 into the term of his probation, police offi- juvenile congregating with suspected gang cers arrested him in his automobile on sus- members at a football game. The police dis- picion of burglary. They also conducted a covered a bag of marijuana on the juvenile. warrantless search of his home, where they Unknown to the police, the juvenile was on found a loaded gun and some ammunition. probation with a condition allowing the search of his person. The defendant was indicted on the federal charge of a felon in possession of a weapon. The California Supreme Court held that He filed a motion to suppress the search of this condition was sufficient to authorize the his home on the grounds that the search was search of the juvenile by police. Even though not conducted in furtherance of enforcing no probation officer was present when the the conditions of his probation but, instead, search was conducted and even though the was conducted pursuant to an investigation police were unaware that the juvenile was on of an alleged crime. The trial court denied probation and unaware of the search condi- the motion, and the defendant appealed his tion, the Court held that the search was rea- conviction to the Ninth Circuit United sonable. The Court stated that “as a general States Court of Appeals. rule, probationers have a reduced expectation of privacy, thereby rendering certain The Ninth Circuit observed that, with intrusions by governmental authorities ‘rea- respect to a probationer, the Court had long sonable’ which otherwise would be invalid recognized that the legality of a warrantless under traditional constitutional concepts, at search depends upon a showing that the least to the extent that such intrusions are search was a true probation search and not necessitated by legitimate governmental an investigative search. The Court further demands.”15 stated that unlike an investigative search, a probation search should advance the goals of The current law is uncertain concerning probation, the overriding aim of which “is whether a court or a probation/parole officer to give the probationer a chance to further can delegate supervisory authority to a and to demonstrate his rehabilitation while police officer and hence change the status of UPERVISORS

S serving a part of his sentence outside the a law enforcement officer into that of a pro- prison walls.” The Court remanded the bation/parole officer. While certain court defendant’s case to the trial court to conduct decisions have approved search conditions

FFICERS AND a hearing in order to determine whether the that extend the authority to law enforce- O search in question was a probation search or ment officers to conduct warrantless searches

AROLE an investigative search. of probationers or parolees,16 most courts /P have deemed that law enforcement officers, 2. Searches Conducted by Police Officers when conducting these searches, are “assist- ROBATION P Alone ing” supervision officers and hence are not Most courts hold that a police officer, acting assuming the role of a supervision officer.

SSUES FOR In differentiating between the notion of I alone, cannot conduct a warrantless search of a suspect simply because a warrantless assisting a supervision officer as opposed EGAL L search has been imposed on the offender as to assuming the supervision officer’s role,

THER a condition of probation or parole. But a courts have focused on whether the supervi- O minority of jurisdictions allow police officers sion officer authorized or initiated the to conduct searches of probationers or search,17 whether the search was conducted parolees without the presence of a supervi- pursuant to a legitimate goal of probation or

IABILITIES AND 18 L sion officer, provided there is a condition of parole, and whether the search was a pre-

IVIL release requiring the defendant to “waive” text for conducting a criminal investigation C his fourth amendment rights. In the recent of the probationer or parolee.19 As a general 116 case of in re Tyrell,14 police officers searched a rule, there is less liability for supervision CHAPTER officers if the police officer is assisting the search and seizure law as a line along which supervision officer than if the supervision various jurisdictions are arranged according to officer is assisting the law enforcement officer. the relative amount of triggering information required by a reviewing court. To act properly 8 S E. State Standards of within a jurisdiction, the probation or parole UPERVISION Reasonableness for Conducting officer must consult local authorities. a Search ■■■ Since the United States Supreme Court’s decision in Griffin v. Wisconsin, the states that allow searches of probationers and II. PROBATION/ parolees have adopted a reasonableness stan- PAROLE OFFICERS dard that is less than a probable cause standard.20 A general definition of “reasonable” is AND FIREARMS that a warrantless search is legitimate whenever a probation/parole officer has reason- significant development in probation able cause to believe that the parolee or A and parole supervision in the last decade probationer is violating, or is about to vio- has been the arming of probation/parole offi- late, a condition.21 Nevertheless the exact cers in some parts of the country. Although words of the judicial test vary from state to the federal system and a few other states had state, but the result is the same. For exam- authorized probation/parole officers to carry ple, in People v. Anderson22 a warrantless weapons before the 1990s, the number of search was approved where the parole officer jurisdictions that have joined the ranks of had “reasonable grounds” to believe there arming their officers has grown markedly in had been a violation. The language in People the last 10 years. This, in turn, has increased v. Santos23 was “reasonable suspicion.” In the liability concerns of officers who now not State v. Williams,24 it was “sufficient informa- only must be aware of all of the nuances of tion to arouse suspicion,” and in State v. probation and parole laws but must also be Sievers, it was “reasonable manner.”25 aware of the legal consequences of the use of deadly force. When courts apply this approach, they often say that the totality of the circumstances The arming of probation/parole officers must be considered, including the com- results from several circumstances. First, plaining party’s status as a probationer or with overcrowding problems in the nation’s parolee.26 This means that the amount of prisons during the last decade and the pres- information required before action can be sure to divert more and more offenders who taken is less than in the case of a member had traditionally been sentenced to prison or of the general public. Nevertheless courts in had previously served longer periods of con- almost every jurisdiction have held that a finement, probation and parole caseloads mere hunch that a probationer or parolee now contain more “hardened” or serious has violated the conditions of his release is offenders than before. Second, the mission insufficient to justify a search of that indi- of probation and parole departments in vidual.27 Even the California state courts, many jurisdictions has changed from reha- which have allowed investigative searches of bilitation to a more balanced approach with probationers and parolees by law enforce- public protection. Finally, greater collabora- ment officers, have held that a search cannot tive efforts between law enforcement agents be arbitrary, capricious, or harassing.28 and probation/parole officers have under- scored the need for armed self-protection. The foregoing categorization is, however, artificial. It is more accurate to think of 117 Whether or not a probation/parole officer is that arise in use of weapons lawsuits involv- armed depends on several factors. First, in ing law enforcement officers and that would order for a state probation or parole officer arise in cases involving probation/parole offi- to be armed, there must be state legal or cers, one can draw analogous conclusions for statutory authority allowing that officer to probation/parole cases by examining law carry a weapon. But even if state law author- enforcement cases. izes the arming of officers, the local court, board of parole, or supervision department Although a party injured in an incident may elect not to arm its officers. Arming involving the discharge of a weapon by a officers or allowing officers to carry firearms probation/parole officer could file a lawsuit is discretionary with the supervisory authori- under the various states’ tort claims acts, ties in most jurisdictions. Finally, even if a the most common cause of action for the jurisdiction allows its officers to carry a improper use of a weapon is a claim for a weapon, state regulations or departmental deprivation of a constitutional right protect- policies may still preclude a particular officer ed by federal law, Section 1983 of 42 U.S. from being armed for a number of reasons, Code. This provision was enacted by the such as psychological reasons, because of United States Congress to provide persons a information found in a background check means of obtaining redress for the loss of a of the officer, or for failure of the officer to constitutional right caused by a person act- pass a weapons certification course. It is ing under color of law. Nevertheless, a mere worth noting that very few jurisdictions in assertion of negligent deprivation of a con- this country allow their juvenile probation stitutional right is insufficient to prevail in officers to be armed. a Section 1983 lawsuit.31 There must be a showing that the deprivation indicated Departments that have chosen to arm their deliberate indifference or gross negligence officers have done so for one of two reasons: on the part of the government official.32 protecting their officers and general law enforcement. State laws differ on the justifi- Supervisors and political subdivisions of a state cation for an officer being armed. For exam- can be sued if the action of the supervisor or UPERVISORS

S ple, Texas allows its adult probation and political subdivision was a contributing cause parole officers to be armed for self-defense of the person’s deprivation of a constitutionally purposes only.29 The law in Pennsylvania and protected right. This accounts for the reluc-

FFICERS AND tance by many departments and agencies to

O New York, on the other hand, states that probation and parole officers are law enforce- allow their officers to carry firearms. For

AROLE example, the lack of sufficient training of

/P ment officers during the period they are on duty and gives them broad powers to arrest probation/parole officers in the use of probationers and parolees observed violating weapons may be grounds for a suit under ROBATION P the conditions of their release.30 Whether an Section 1983.33 This failure to properly train officer is liable for an incident arising from extends to the failure to provide continuous 34

SSUES FOR training, failure to ensure that the officers I the discharge of a weapon may depend on the extent of the authority given to the offi- adequately understood the course material,35 EGAL L cer by state law to carry a weapon and on and even failure to provide instruction on

THER whether the officer exceeded that authority. first aid in case a person is injured as a result O of the discharge of the officer’s weapon.36 There is hardly any court decision examining liability issues arising from the discharge Probation and parole officers may be liable IABILITIES AND

L of a weapon by a probation/parole officer, if they use excessive force in attempting

IVIL but there are numerous court cases on the to arrest or apprehend an offender. In C use of a weapon by a law enforcement offi- Tennessee v. Garner,37 the Supreme Court 118 cer. Because of the similarity in legal issues held that the use of excessive force (in this CHAPTER case a shooting) to arrest a suspect of a be imposed. When this takes place will be crime constituted an unlawful seizure under decided on a case-by-case basis, but not allow- the fourth amendment to the United States ing an officer to carry a firearm in itself should Constitution. The Court stated that a police not constitute deliberate indifference. It also 8 S officer could not use a deadly weapon to helps if the agency has a policy aimed at UPERVISION stop an unarmed nondangerous suspect minimizing the possibility of such incidents from fleeing unless said deadly force was taking place. For example, the department necessary to prevent the escape and the offi- can require that in risky situations, the officer had probable cause to believe that the cer should request the assistance or presence suspect posed a significant threat of death of police officers and not undertake the job or serious physical injury to the officer or alone, or that it be done only in the compa- others. In addition, the officer must give ny of another probation or parole officer. a warning, where feasible. The same rule applies to probation/parole officers. ■■■

In departments where officers are allowed to carry firearms, the following rules should be III. DUTY TO THE considered if civil liability is to be obviated OFFENDER NOT or minimized: TO DISCLOSE ■ Proper training on the use of firearms is INFORMATION a must. Ideally, that training should be similar to that given to police or other law major legal liability concern of field enforcement officers in the state. A officers relates to confidentiality and ■ Ideally, officers should be properly certi- privacy issues. Despite the widespread anxi- fied as law enforcement officers. This ety this issue generates among officers, there includes participation in regular continu- are actually only a few instances in which ing education programs required of law the breach of confidentiality has been the enforcement officers. basis for a civil suit against an officer. This ■ The department must set a clear policy does not imply that confidentiality issues are on officers’ use of deadly force. Such use not important for officers, or that officers should be limited to cases when there cannot incur liability for the improper dis- is probable cause to believe that deadly closure of information regarding an offender. force is needed for self-defense or for Instead, it indicates that this has not been an the defense of other persons. issue over which offenders in the past have had a particular awareness and, therefore, There is fear in some departments that the there have been few claims alleging a breach agency itself might be sued if officers are of a confidential matter. Perhaps because of not allowed to carry firearms and are later the heightened concern officers have regard- injured in the course of their work. This is ing confidentiality, officers traditionally have understandable, but as best we know no case taken a cautious approach when dealing has been filed in court so far on this issue. with information concerning an offender. Even if filed, however, chances of success What makes disclosure of information about may be remote because the officer will have a probationer/parolee less of a liability issue difficulty establishing that carrying a firearm is that, in many states, the fact that a person would have prevented the injury. There will is on probation or parole is a matter of pub- have to be deliberate indifference on the part lic record and, therefore, there is no liability of the department before liability can likely for disclosure. Moreover, such disclosure 119 might be justified by the fact that it is pro- In Anderson v. Boyd,39 the plaintiff parolee tective of society. The only possible excep- brought suit against parole officers, claiming tion to this is juvenile cases if disclosure of a the defendants had knowingly repeated false juvenile being on probation or parole is pro- statements regarding the plaintiff’s criminal hibited by state or case law. record to Idaho state officials and local police authorities. The court ruled that dis- Although being on adult probation or parole semination of information about a parolee is a matter of public record in most states, to persons outside the parole board does what may be disclosed beyond that is much not relate to the parole officers’ duties in less certain and depends upon state law or deciding to grant, deny, or revoke parole. agency policy. This refers to information Therefore, absolute immunity does not concerning how long a person is on proba- extend to such conduct; at most, parole offi- tion, for what offense a person is on proba- cers would be entitled to executive, good tion, what conditions have been imposed, faith immunity for their alleged conduct. and other issues. In most states, such information is not a matter of public record and In addition to information gleaned from therefore may not be disclosed. public records and correctional files about the offender, probation/parole officers fre- One writer, however, gives this opinion on quently receive information directly from the issue of disclosure and liability under the offender and the officer’s associates. If state tort law: the offender has a right to prevent the dis- semination of information from such sources, It is doubtful that such acts as the dis- might he or she be able to recover damages closure of information to employers from the officer in a proper suit in the event proscribing certain employment would of disclosure? As a matter of general law, be deemed tortious. Federal officers apparently the answer is no. Again, case law can reveal items of information from support for this conclusion is thin, but that public records, such as records of prior in itself is somewhat indicative of the weak- arrests or convictions, free of liability ness of the argument that must be made to

UPERVISORS from the tort of defamation. Regard- S support liability. The question hinges on the less of the source of the information, nature of the relationship between the pro- if it is accurate, no liability could arise bation/parole officer and the offender.

FFICERS AND for defamation, since truth is a com- O plete defense. As to the tort of invasion One of the closest examinations of the rela-

AROLE of privacy, disclosure of items of public tionship was made in a 1976 Washington /P record creates no liability. Also, release criminal case.40 In that case, a parolee con- of information to a large number of per- tended that the trial court should not hear ROBATION P sons is an essential element of the tort of testimony from his parole officer concerning invasion of privacy; that element would statements he made voluntarily during a tele- be lacking in the release of information SSUES FOR phone conversation. (Since there was no cus- I to an individual employer. Finally, the todial interrogation, the parolee could not EGAL L tort of interference with a contract or a argue successfully that Miranda required sup-

THER prospective contract can be justified if pression.) The defendant contended that the O the ultimate purpose of the disclosure relationship between parole officer and parolee outweighs the harm to the plaintiff. is a confidential one, that all communications The impersonal disclosure of informa- between the two were thereby privileged, IABILITIES AND

L tion to an employer to protect the pub- and that to hold otherwise would undermine

IVIL lic or a third party would appear to be the rehabilitation process envisioned by the C within the rule of justification.38 parole system. The court disagreed: 120 CHAPTER A parole officer’s primary responsibility on behalf of his client by virtue of this is to the court, secondly to the individ- status as advisor, nor are the communi- ual being supervised. To hold that each cations of the accused to the probation communication between the parolee officer shielded by the lawyer-client privi- 8 S

and his parole officer is privileged lege. . . . In most cases, the probation offi- UPERVISION would close the lips of the supervising cer is duty bound to report wrongdoing by personnel and allow the parolee to the juvenile when it comes to his attention, confess serious crimes with impunity.41 even if by communication from the juvenile himself. [Emphasis supplied.] It must be noted that, in criminal prosecutions, courts require a very high degree of Although the above case involved a juvenile need for relevant testimony. They are reluc- probationer, there are strong reasons to tant, therefore, to expand the concept of believe that the principles enunciated apply to privilege beyond its traditional bounds— adult cases as well. Constitutionally, therefore, lawyer-client, doctor-patient, clerical-penitent, probationers/parolees do not have a right husband-wife. While the civil law context against disclosure of information given to is different, there is no reason to expect the probation/parole officers; however, disclosure officer-probationer/parolee relationship to may be prohibited by state law or agency reg- be treated as confidential. ulation. This is especially true if the nature of the disclosure involves the physical or mental A. The Case of Fare v. Michael C. health status of the individual. Says There Is No Privileged Communication Between Some supervisory agencies have administrative policies concerning public record access Probation Officer and Offender and disclosure. These rules may establish a In Fare v. Michael C.,42 the request by a juve- policy forbidding an officer from releasing nile on probation, who was suspected of certain information regarding a probationer murder, to see his probation officer—after or parolee, even though no statute or other having been given the Miranda warnings law prohibits an officer from doing so. An by the police—was not considered by the agency policy restricting the disclosure of United States Supreme Court as tantamount certain information would supersede the to his asking for a lawyer. Evidence volun- general principles discussed here. Hence, the tarily given by the juvenile, even after he reader should determine whether there is an expressed a desire to see his probation officer applicable agency policy that would prohibit instead of a lawyer, was held admissible in a an officer from releasing information main- subsequent criminal trial. The Court also tained by the agency. In addition, certain addressed the issue of confidentiality of states have now established laws or adminis- information between a probation officer trative policies restricting the disclosure of and a juvenile probationer, saying:43 information pertaining to the victim of a crime. A probation or parole officer should A probation officer is not in the same thoroughly familiarize himself or herself posture with regard to either the accused about laws or policies in his or her jurisdic- or the system of justice as is [a lawyer]. tion that preclude the release of information Often he is not trained in the law, and pertaining to a victim. so is not in a position to advise the accused as to his legal rights. Neither B. Invasion of Privacy is he a trained advocate, skilled in the representation of the interests of his An area of liability concern that is similar to client before both police and courts. the disclosure of confidential information He does not assume the power to act involves the potential tortious invasion of 121 privacy. Many, if not most, states recognize a probationer or parolee convicted of theft a cause of action for a breach of privacy. about the offender’s sexual life or practices, Generally, the elements for a breach of said questioning could be deemed improper, privacy are (1) the publication of matters especially if there were no indication that concerning an individual’s private life, the the offender’s sexual behavior was interfering publication of which would be highly offen- with efforts to rehabilitate the individual sive to a reasonable person of ordinary sensi- or had contributed to commission of the bilities; and (2) the matter that is publicized offense for which he or she was placed on is not of legitimate public concern.44 While probation or granted parole. Thus even disclosure of information that is a public though a probationer or parolee has been record or factual information regarding convicted of a crime, the individual still has an individual’s criminal conviction is not an interest in preventing unreasonable intru- actionable as an invasion of privacy, the dis- sion into his or her private life. closure of certain highly personal information about an offender may be. C. Libel and Slander

Thus, the improper disclosure of informa- Another area of concern touching upon pri- tion obtained while questioning the offender vacy issues involves libel and slander. Libel is being supervised may give rise to a suit for a written or printed defamation that tends the invasion of privacy. For example, even to injure the reputation of a living person though a probationer or parolee may be and thus expose him or her to public hatred, supervised for a sex offense, it still may be contempt, ridicule, or financial injury, or an invasion of the individual’s privacy if a impeach his or her honesty, integrity, virtue, probation or parole officer were to disclose or reputation. Slander is a defamatory state- highly sensitive information about the ment orally communicated or published to offender’s sex life. If this information about a third person without legal excuse. Even the individual’s sex life were not criminal though probationers and parolees have been in and of itself, but such that an ordinary convicted of a criminal offense and even if person would find highly embarrassing if it their reputation is not held in high esteem

UPERVISORS in the community, libel and slander laws still S were disclosed about that individual, then such disclosure may constitute an invasion protect them. of privacy. Moreover, if the agency responsi- Thus if an officer were to make a false factual FFICERS AND

O ble for supervising the offender has a policy statement about an probationer or parolee, against disclosing such information, it may

AROLE such as a false accusation that an offender

/P be presumed that such information is highly convicted of embezzlement is a drug dealer sensitive and therefore be presumed that the or a person convicted of driving while intox- publication of such would constitute a breach ROBATION

P icated is a child molester, the offender could of privacy. bring an action against the officer for libel or slander. Moreover, since making false accu-

SSUES FOR Finally, the improper questioning of a pro- I bationer or parolee during supervision may sations regarding a probationer or parolee EGAL L give rise to a suit for unreasonable intrusion is clearly not within the course and scope of an officer’s job responsibilities, it if doubtful

THER upon the privacy of the individual. While O officers have a great deal of discretion and whether an officer could assert the defense are given considerable leeway in questioning of official immunity in response to a suit for an offender who is under supervision, the libel or slander. Hence any statement that

IABILITIES AND an officer makes about an offender must be

L questioning must have a reasonable bearing factually based and verifiable and the publi- IVIL on rehabilitation of the offender or enforce- C ment of the conditions of release. For exam- cation of which must be consistent with 122 ple, if an officer were to extensively question department policies and state law. CHAPTER D. No Tortious Interference recommend to the employer that the With a Contract If Disclosure employee be terminated. The officer should Is Justified provide only factual information to the employer for the purpose of making the 8

Officers frequently face situations in which S employer aware that he or she may need UPERVISION they see the need to inform a person employ- to take certain precautions regarding the ing a probationer or parolee about the indi- employee. The precautions that are taken vidual’s criminal record (see section IV, should be left to the discretion of the Liability for Failure to Disclose Offender employer. Background Information to Third Parties, in this chapter). A potential liability concern for disclosing information to an employer E. Federal Rules of regarding an offender under supervision is Confidentiality the tortious interference with a contractual Every state has laws regarding the disclosure relationship between the employer and his of confidential information. These laws gen- or her employee. The elements for establish- erally protect information concerning an ing such causes of action are (1) the exis- individual’s physical or mental health status. tence of a contract subject to interference; In addition, states may also have laws pro- (2) a willful and intentional act of interfer- tecting other information deemed sensitive ence; (3) proximate cause of damages by in nature. These state laws may or may not reason of the interference; and (4) the pertain to probationers or parolees in vari- actual occurrence of loss or damages.45 ous jurisdictions. Since this manual discusses only probation and parole matters that Ordinarily there is no tortious interference have general applicability to the nation as with a contract if there is a legal justifica- a whole, it is advisable for a probation or tion for informing the employer about the parole officer to seek legal advice concerning employee. In probation and parole supervi- whether local laws may provide additional sion, legal justification would likely exist if protections for the disclosure of information the disclosure of information concerning the pertaining to offenders. offender would protect the interests of the employer or further the safety of the public. Federal law, under certain circumstances, Thus if a probation or parole officer notifies creates a right of confidentiality throughout a hospital that its employee, working in a the country regarding information about dispensary, was convicted of a drug offense alcohol or substance abuse treatment. This or notifies a bank that one of its tellers had law has stringent requirements for allowing been convicted of embezzlement, this would the disclosure of alcohol and substance be justified on the grounds that said disclo- abuse information and has severe penalties sure protected the interests of the employer for the improper disclosure of this type of and the public. Liability might issue, howev- information. This law also applies to offender, if disclosure is prohibited by state law or ers in the criminal justice system. Thus it is agency policy, as is the case in juvenile pro- important for probation and parole officers bation or parole supervision. to understand federal confidentiality rules.

Nevertheless, an officer should inform Volume 42 United States Code Section an employer only about one of his or her 290dd-2 provides that if a treatment employees who is being supervised in strict provider falls within the ambit of federal accordance with guidelines established by or regulations, then the confidentiality of the under the direction of the court, board of identity of any patient seeking drug and parole, or supervisory agency. Moreover, alcohol treatment must be protected.46 In an officer should under no circumstances addition, this law provides that any person 123 who receives information regarding the iden- providers that receive federal funding tity of a patient being treated for drug or either directly or indirectly, such as through alcohol abuse in a federally regulated facility Medicare payments, are subject to federal cannot pass it on without proper authoriza- regulations. However, because of the serious- tion. “Patients” include probationers or ness of a breach of this federal law, a proba- parolees being treated for substance abuse tion or parole officer who refers an offender problems by a treatment provider subject to substance abuse treatment should inquire to federal regulations. Thus a probation of that treatment provider concerning or parole officer may be precluded from whether it is subject to federal regulations. acknowledging that an offender is being treated for alcohol or substance abuse or ■■■ from indicating the location of an offender who is residing in a substance abuse treat- IV. LIABILITY ment facility, even to a court or law enforcement agency. FOR FAILURE TO

This federal law allows only the disclosure DISCLOSE OFFENDER of information identifying a person as being BACKGROUND treated for a substance abuse problem under certain narrow exceptions. One is if the per- INFORMATION TO son being treated signs an informed consent THIRD PARTIES allowing the disclosure of treatment information to certain parties. The other is if the offender is being investigated for the commis- A. The “Public Duty Doctrine” sion of another crime and the disclosure is Generally Precludes Liability required pursuant to a court order. However, The term “third parties” refers to the gen- in order to procure a court order authorizing eral public that may be harmed by what an the release of this type of information, there offender does. For example, may a proba- must first be a court hearing. A subpoena tion/parole officer be held liable for what a UPERVISORS S signed by a judge compelling the disclosure person under supervision does? The answer of this information is not sufficient. is no, but with some exceptions.

FFICERS AND At the court hearing, the court must find that O One purpose of probation or parole is pub- “good cause” exists for disclosing this informa- lic protection; in fact, some agency manuals AROLE tion. In order to find “good cause,” the court /P explicitly say so. The public, therefore, has must consider the seriousness of the alleged reason to think that if an injury is caused by offense and balance the necessity and public

ROBATION a probationer or parolee, the probation or P interest in disclosing the information with the parole officer and department failed in its right of the patient to keep this information job to protect the public. The “public duty

SSUES FOR confidential. If a court deems the information I doctrine” protects officers from liability disclosable, then an order will be issued com-

EGAL whenever a crime is committed against the L pelling the individual having information public by an offender. This doctrine holds

THER regarding the identity of the person being

O that government functions, such as protect- treated for a substance abuse problem to ing the public, are owed to the public in reveal the information to proper authorities. general, but not to specific individuals in particular. Example: A parole officer may IABILITIES AND

L Not all substance abuse treatment providers have an obligation to protect the commu-

IVIL come under this federal confidentiality law;

C nity in general, but not a member of the only those treatment providers subject to community in particular. Therefore, if a 124 federal regulations do. Generally, treatment CHAPTER person is harmed by a parolee, the parole (1) a rapist in an apartment complex or tele- officer is not liable. vision repair job; (2) an embezzler in a bank or financial company; (3) a drug user in a While this doctrine generally insulates offi- pharmacy or hospital; BUT NOT (4) a fam- 8 S cers from liability, there are exceptions to it, ily assaultist in an apartment complex (this UPERVISION the most significant being “special relation- would be related to a prospect of harm to ship,” discussed below. Probation/parole members of his family, assuming he has not officers may be liable in a narrow set of cir- demonstrated a general violent disposition); cumstances when a third person is harmed or (5) a financial scheme criminal who starts by an offender about whom there was no a “home security” business (the risk would disclosure of background information. The be to burglarize homes or sell plans, which is leading cases from the probation and parole not similar or related to his criminal convic- settings are discussed separately. tion; also, the clients would be general, not specific possible victims).47 B. There Might Be Liability If a “Special Relationship” Exists For purposes of minimizing possible liability based on foreseeability, a policy probation Every person walking the streets faces some and parole departments might want to con- risk of harm at the hands of a parolee or sider is that used by the federal government probationer. But it is not—and could not— in determining whether to notify an employer. be the rule that in every case of actual injury, Its Guide to Judiciary Policies and Procedures the supervising government agency or pro- (1983)48 provides the following: bation or parole officer will be liable to the party injured. The cases in this section point Decision Regarding Disclosure to the factor that is most likely to lead to actual liability. The key is the concept of (1) If the probation officer determines “special relationship.” Unfortunately, this that no reasonably foreseeable risk exists, concept is the type into which courts tend then no warning should be given. to pour meaning on a case-by-case basis. (2) If the probation officer determines Based on a study of relevant cases, the that a reasonably foreseeable risk exists, Federal Probation Service’s legal advisor has he or she shall decide, based upon the concluded that the central requirement nec- seriousness of the risk created and the essary to give rise to a “special relationship” possible jeopardy to the probationer’s is a reasonably foreseeable risk of harm to a employment or other aspects of his reha- particular person or narrow class. This ele- bilitation, whether to: (a) give no warning, ment is explained by one source as follows. but increase the probationer’s supervision sufficiently to minimize the risk; (b) give 1. Reasonably Foreseeable Risk no warning, but preclude the probationer from the employment; or (c) give a confi- The duty to warn arises when, based on the dential warning to party on notice of the probationer’s (parolee’s) criminal background risk posed. When appropriate, the proba- and past conduct, the officer can “reasonably tioner may be permitted to make the dis- foresee” a prospect of harm to a specific third closure with the understanding that the party. “Reasonably foresee” means that the probation officer will verify the disclosure. circumstances of the relationship between the probationer (parolee) and the third party, This policy protects against possible liability e.g., employer and employee, suggest that because it gives the officer discretion to deter- the probationer (parolee) may engage in mine foreseeability and what remedial meas- a criminal or antisocial manner similar, or ures are to be taken if foreseeability exists. related to, his past conduct. Examples include 125 Nevertheless, disclosure is a problem in juve- injured parties had reasons to believe that nile cases where state law or department pol- the offenders were competent to do the icy may prohibit disclosure of records. In work and not prone to commit violent acts. these cases, an officer who wants to disclose a juvenile record to a prospective employer This principle of reliance was central to (to protect against a possible lawsuit by the the Myers case,52 discussed below, where the employer for nondisclosure) should obtain a California Court of Appeals decided that waiver in writing, if such is allowed by law the officers were not liable for failing to or agency policy, to disclose such record to warn an employer that the probationer was the employer. a convicted embezzler. This was because the probation department did not place the pro- Another instance when liability might ensue bationer with the employer or direct him in probation/parole supervision is if there in his employment activates, nor did the is foreseeability and an identifiable victim. department have any other special relation- Example: A parolee tells a parole officer dur- ship with the employer; hence, there was ing an interview that she is losing control no reliance. of herself and will likely kill her husband, whom she blames for all her problems. If While the above cases deal with failure to that threat is credible (foreseeability), then disclose, the act of disclosure may lead to the officer is obliged to do something to pre- a probationer/parolee not getting the job; vent it from happening. In fact, this contin- hence, the probationer/parolee may sue. gency should be covered by agency policy. Chances of liability in these cases are slight Some agencies provide that in instances because the disclosure may be justified under where there is foreseeability and an identifi- the concept of “protection of society.” A legal- able victim, the police must be informed ly sound policy for the department to adopt, immediately, or the offender must be placed however, is one that makes disclosure or under temporary custody or surveillance. nondisclosure optional in those cases where Courts will likely conclude that the presence a probationer/parolee obtains a job on his of foreseeability and an identifiable victim own and without the help of the officer or UPERVISORS

S creates a “special relationship” between the department. This protects the officer either officer and the public that can lead to liability way in that if he or she discloses the record, if no action is taken. the policy protects him or her; conversely,

FFICERS AND if he or she does not disclose, there is no O 2. Reliance liability because such disclosure is optional. AROLE

/P Another element that the above liability There are departments that require disclo- cases have in common, aside from foresee- sure by the officer to the employer of the

ROBATION ability, in some cases, is reliance, i.e., that the P employee’s record, even if the employee probation/parole officer undertook specific obtained employment on his or her own. actions that contributed to the harm suf- This policy carries added risks for the offi- SSUES FOR I fered by the victim. For example, in Johnson cer because failure to disclose would then 49 EGAL v. State, California officials prevailed upon L amount to negligence of duty or a violation the plaintiff to accept the parolee as a foster

THER of policy. The better policy is to make dis- 50

O child; in Georgen v. State, the officers per- closure or nondisclosure optional, as recom- suaded the plaintiff to hire the parolee; and mended above. in Rieser v. District of Columbia,51 District of Columbia officials found the parolee the job IABILITIES AND As stated above, however, courts have not set L and permitted him to remain in a position any definitive standard as to when special IVIL C to prey on women even as evidence mounted relationship exists, instead determining lia- that he was a rapist. In all these cases, the 126 bility almost on a case-by-case basis. This CHAPTER writer theorizes that courts, particularly in The court concluded that if a state parole jury trials, will compensate injured plain- officer failed to consciously consider the risk tiffs in cases where the facts look bad for to the plaintiff in accepting a 16-year-old the defendants and then justify the damage parolee in her home and consequently failed 8 S award based on special relationship. The to warn the plaintiff of a foreseeable, latent UPERVISION rationale seems to be that the plaintiff has danger in accepting him, and that failure led suffered enough because of wrongful behav- to the plaintiff’s injury, the state would be ior by the probation and parole officer and, liable for such injuries. therefore, compensation must be given for an innocent victim’s injury. Given this, it In the similar case of Georgen v. State,55 a state is difficult to say specifically when special court found liability against the New York relationship exists. Division of Parole for failure to disclose the violent background of a parolee who was C. Cases Involving Parole recommended for employment to the plain- Officers tiff, whom he later assaulted. The court concluded that the plaintiff’s reliance on the 53 In Johnson v. State, a case decided by the recommendation and her complete ignorance California Supreme Court, a parolee was of the danger posed by the parolee were suf- placed with a foster parent, the plaintiff. ficient grounds to find a duty to disclose. Shortly thereafter, the parolee assaulted the Another case, Rieser v. District of Columbia,56 plaintiff, who then brought suit alleging is perhaps the best known case involving a that the parole officer had negligently failed parole officer where liability was imposed. to warn her of the youth’s homicidal tenden- The facts of the case and the decision are cies and background of violence and cruelty. complex but are briefly summarized here. The state argued that this was a discretionary act by the parole officer and the officer was In Rieser, the plaintiff’s daughter, Rebecca entitled to immunity. The court found that Rieser, was raped and murdered by a the consideration involved in deciding parolee, Thomas W. Whalen. He had whether to disclose background information been assisted by the District of Columbia was at the lowest to no immunity. The state Department of Corrections in finding also argued that it owed no duty of care to employment at the apartment complex the plaintiff. where the victim lived. The parolee was a suspect in two rape-murder cases at the time The court rejected this and held the state of parole and, during his employment in the 54 liable, stating: apartment complex, became a suspect in a third murder of a young girl. Parole was not As the party placing the youth with revoked, but the parole board did advise the Mrs. Johnson, the state’s relationship parole officer to supervise the parolee closely. to the plaintiff was such that its duty No warning was given to the employer by extended to warning of latent, danger- the parole officer of the potential risk posed ous qualities suggested by the parolee’s by the parolee’s presence. history or character. . . . Accordingly, the state owed a duty to inform Mrs. The employer was later warned by the police Johnson of any matter that its agents of the parolee’s record and his status as a sus- knew or should have known that might pect in the three murders, but the employer endanger the Johnson family. At a mini- did not do anything. Shortly thereafter, the mum, these facts certainly would have parolee entered the victim’s room and raped included homicidal tendencies and a and strangled her. The United States District background of violence and cruelty, Court for the District of Columbia entered as well as the youth’s criminal record. 127 judgment on the jury’s verdict awarding employer. In this case, the probation depart- damages in the amount of $201,633 against ment did not place the probationer with the the District of Columbia. The decision employer or direct him in his employment was appealed. The United States Court activities and had no other special relation- of Appeals for the District of Columbia ship with the employer. It was irrelevant that affirmed the award, stating that the parole the probationer was to devote some of his officer had a duty to reveal the parolee’s earnings to court-ordered restitution. prior history of violent sex-related crimes against women to the management of the ■■■ apartment complex, as the employer of the parolee, in order to prevent a specific and V. OTHER unreasonable risk of harm to the women tenants. SUPERVISION

The court stated that an actionable duty ERRORS is generally owed to reasonably foreseeable plaintiffs subjected to an unreasonable risk ailure to warn where there is some duty of harm by the actor’s (in this case the parole Fto do so is not the only circumstance that officer’s) negligent conduct: could give rise to liability to third parties. Deficiencies in the whole range of a field Abron’s position as a parole officer officer’s responsibilities are replete with pos- vested in him a general duty to reveal sibilities. An example is Semler v. Psychiatric to a potential employer Whalen’s full Institute,59 decided by the Fourth Circuit prior history of violent sex-related Court of Appeals in 1976, which resulted crimes against women, and to ensure in liability. that adequate controls were placed on his work. Placement of Whalen at Semler needs full discussion in view of its McLean Gardens put him in close convoluted facts. The case was a negligence proximity to the women tenants, action under Virginia law. It was brought

UPERVISORS by Helen Semler to recover damages for S with the opportunity to observe their habits, and gave him potential access the death of her daughter, who was killed to the keys to their apartments and by John Gilreath, a Virginia probationer.

FFICERS AND dormitory rooms. . . . The jury could Gilreath had been prosecuted for abducting O conclude that a breach of Abron’s gen- a young girl in 1971. Pending his trial,

AROLE eral duty would present a specific and Gilreath entered the Psychiatric Institute of /P unreasonable risk of harm to the Washington, D.C., for treatment. The doc- women tenants of McLean Gardens tor said that he thought Gilreath could ben- ROBATION P therefore giving rise to a special duty efit from continued treatment and that he toward them.57 did not consider him to be a danger to himself or others as long as he was in a super- SSUES FOR I vised, structured environment such as was

EGAL D. Cases Involving Probation L Officers furnished at the Psychiatric Institute. In

THER August 1972, Gilreath pleaded guilty. His O In Meyers v. Los Angeles County Probation 20-year sentence was suspended, condi- 58 Department, the California Court of Appeals tioned on Gilreath’s continued treatment decided that the county probation department and confinement at the Institute.

IABILITIES AND and its employees were not liable for failing L to warn an employer that a probationer was A few months later, on the doctor’s recom- IVIL C a convicted embezzler, thus enabling the mendation and the probation officer’s 128 probationer to embezzle funds from the request, the state judge allowed Gilreath CHAPTER to visit his family for Thanksgiving and of confinement until released by the crimi- Christmas. Subsequently, again on the nal court was to protect the public, particu- recommendation of the doctor, the judge larly young girls, from a foreseeable risk of allowed additional passes, and early in 1973 attack. The special relationship created by 8 S he authorized the probation officer to grant the probation order imposed a duty on the UPERVISION weekend passes at his discretion. In May government and the probation officer to 1973, the doctor recommended that Gil- protect the public from the reasonably fore- reath become a day care patient so that he seeable risk of harm at Gilreath’s hands that could go to the hospital each morning and the state judge had already recognized. The leave each evening. The probation officer plaintiff was awarded $25,000 in damages, transmitted this recommendation to the with the probation officer liable for one-half. judge, who approved it. The facts in the Semler case are rather In July 1973, the probation officer gave unique and, because of that, its applicability Gilreath a 3-day pass to investigate the pos- to other probation cases is doubtful. An old sibility of moving to Ohio. The probation adage states that “hard facts make bad law.” officer later gave Gilreath a 14-day pass so Nonetheless, it appears crucial in Semler that he could return to Ohio to prepare for a the probation officer in effect changed the transfer of probation to that state. The status of the probationer from that of a officer approved each of these trips after day care patient to an outpatient without discussing them with the doctor. Neither authorization from the judge. The probation pass was submitted to the state judge for officer gave Gilreath more liberty than the approval. On August 29, 1973, the doctor, judicial order allowed. The result in the case assuming Gilreath would be accepted for would most probably have been different probation in Ohio, wrote the probation had the actions of the probation officer and officer that Gilreath had been discharged the doctor been in accord with a judicial from the Institute. order, even if the young girl died. The judge himself could not possibly be liable because The Ohio probation authorities, however, of the absolute immunity defense. Carrying rejected Gilreath’s application for transfer. out the orders of the court is a valid defense Gilreath telephoned this news to his proba- in liability cases, unless those orders are tion officer, who instructed him to return to patently illegal or unconstitutional. Virginia. On September 19, 1973, Gilreath visited his doctor, who told him he should Special note should be taken of the way in have additional therapy. The doctor did not which Semler differs from the cases in the restore Gilreath to day care status, enrolling preceding section. Unlike Johnson, Georgen, him instead in a therapy group that met 2 and Rieser, the plaintiff in Semler did not nights a week. As an outpatient, Gilreath allege that a risk of harm to her daughter first lived at home and later alone, working was foreseeable. The deceased was simply as a bricklayer’s helper. Gilreath told the a member of the general public. While the probation officer about this arrangement, Semler court used the term “special relation- but the officer did not report it to the judge. ship,” it was used in an entirely different In late September, the officer was promoted way than in the other cases. The potential and a new probation officer was assigned to consequences of the Semler precedent are Gilreath on October 1. Gilreath killed the significantly more worrisome as a result. plaintiff’s daughter on October 29, 1973. It should also be noted that the kind of In allowing the plaintiff’s claim, the conduct that might have defeated liability appeals court stressed that the requirement in Semler was quite different from the 129 companion cases. The state court in Semler court had assigned him. The appellate court knew all of the facts concerning Gilreath’s ruled that the defendant had a statutorily background. What was not communicated created interest in remaining under supervi- was his present treatment status, information sion. Consequent due process required the court might have used to keep the pro- notice, a hearing, right to confront and bationer in check. In Meyers and the other cross-examine adverse witnesses, and disclo- cases, it was the party injured who did not sure of evidence against the defendant used receive information. by the agency in refusing him further treatment. In Beckler, the appellate court held Finally, in Semler there was a unique breach that procedures should be utilized to ensure of orders factor. When the physician and that the agency ruling had not arbitrarily probation officer ceased to involve the judge disregarded the defendant’s interest in super- in making decisions about Gilreath, they vision. However, Beckler merely suggests arrogated to themselves power that was not supervision may not be denied without due theirs to exercise. They could not do this process where statutes so provide. While the without also accepting the consequences of case presently stands alone, its inherent logic their actions. constitutes a forceful argument for compliance by officers working under provisions of ■■■ similar statutes. Nevertheless, Beckler stands for a right to due process, not a right to VI. DO OFFENDERS supervision. HAVE AN ENFORCE- ■■■ ABLE RIGHT TO TREATMENT VII. REPORTING PROGRAMS? VIOLATIONS he enforcement of the conditions UPERVISORS

S ourts have generally viewed the grant- imposed on a released offender is ing of probation or parole as a privilege T C another issue of concern for field officers. and not a right. For example, in Flores v. Generally, an officer has a duty to report vio- 60 FFICERS AND State, the Texas Court of Criminal Appeals O lations to the court or parole board. He or she stated that “there is no fundamental right to has the duty to maintain close contact with AROLE receive probation; it is within the discretion /P and supervision of the probationer/parolee of the trial court to determine whether an in the interests of rehabilitation and protec- individual defendant is entitled to proba- 62 ROBATION tion of the public. Nevertheless, research P tion.” Nevertheless, once granted probation has found very few cases in which liability or parole, an offender may be entitled to arose from an officer’s failure to report a vio-

SSUES FOR participate in certain programs or services I lation and a subsequent crime or tort com- that are available to similar probationers and

EGAL mitted by a client. (See section X, Recent L parolees and the denial of which may result Judicial Decisions Concerning Liability of

THER in a revocation proceeding.

O Probation and Parole Officers for Supervi- sion, in this chapter). However, see the dis- There are very few reported cases that have cussion of Semler v. Psychiatric Institute in examined this issue. However, in People v. 61 this chapter for a case in which liability IABILITIES AND

L Beckler, an appellate court focused on the attached when a change in treatment status

IVIL plight of a defendant who was rejected by

C was not communicated. the treatment program to which the trial 130 CHAPTER For a discussion of violations as an aspect of may be held liable for improper disburse- revocation, see Chapter 9, Revocation. ment. No funds may be disbursed to anyone other than the party named in the order of ■■■ the court (or parole board). Thus, an officer 8 S

was held liable for having paid restitution UPERVISION VIII. RESTITUTION money to a relative of a court-ordered recipient.67 In this situation, restitution was to be COLLECTION paid through the probation office, but the supervising officer ordered the office to pay probation officer generally cannot funds to the recipient’s sister with whom the A assess the amount of restitution. If an recipient was living. The officer was found amount is not specified in the order of pro- by the court to be exercising action outside bation, none may be collected.63 The court the duties of his office. must provide the probationer with a specific amount to be paid as restitution. It is If restitution is being paid directly by the improper to delegate that authority to the offender, the officer may be responsible for probation supervisor.64 The basic premise assuring payment, but only insofar as his here is that the imposition of restitution, supervision duties allow him or her to know as with any other part of a sentence, is by the facts. Therefore, if the officer is not statutory authority granted to the court and, aware of the failure of the offender to make therefore, the court must determine the payments after exercising proper diligence, amount.65 The imposition of probation con- he or she will not be liable. If he or she is ditions is the duty of the court and cannot aware, there is a duty to report the matter to be delegated. Again, the only exception is if the court (or parole board) as a violation of otherwise specifically provided for by law.66 conditions, at which point there will be no liability on the part of the officer.68 Once restitution has been ordered, it becomes the responsibility of the probation/parole While the imposition of a fine or restitu- officer or the department, depending upon tion by the court as a condition of release is organizational structure, to handle and dis- obviously constitutional, the U.S. Supreme 69 burse funds received from the offender in a Court has held in Bearden v. Georgia that a proper manner. The order of the court (or judge cannot properly revoke a defendant’s parole board) will include the party to whom probation for failure to pay a fine and make restitution is due, as well as the amount. restitution—in the absence of evidence and While in some cases the order may state finding that the probationer was somehow something less than a specific name, such responsible for the failure, or that alternative as a company, it is the duty of the officer forms of punishment were inadequate to meet to pay out the funds to the proper party. the state’s interest in punishment and deterrence. Simply stated, if a probationer/parolee No personal responsibility accrues unless the cannot pay a fine or restitution because he officer is given the duty of disbursing the is indigent, his probation/parole cannot be funds. In most cases, a separate office is main- revoked unless alternative forms of punish- tained to handle payments by the offender ment are inadequate. On the other hand, and disbursements, in which case the depart- if the probationer/parolee has the financial ment, not the individual officer, is responsi- capacity to pay, but refuses to pay, revoca- ble. However if the officer is responsible, he tion is valid.

131 IX. SHOULD THE custody, but what about other instances? From a study of court cases, the rule appears PROBATION to be: If after the interrogation, the officer OFFICER GIVE THE intends to let the probationer leave, then the probationer is not in custody. Conversely, PROBATIONER if the officer during the interrogation had no intentions of allowing the probationer to MIRANDA WARNINGS leave after the interrogation (either because WHEN ASKING of prior information of the probationer’s activities or because of answers during the QUESTIONS interrogation that convince the officer that CONCERNING A the probationer should be placed under custody), then the probationer is under custody CRIMINAL OFFENSE? and, therefore, the rules as summarized above apply. he case of Minnesota v. Murphy, decided T by the U.S. Supreme Court in 1984 What about cases where initially an officer and discussed more extensively in Chapter does not intend to place the probationer in 9, Revocation, answers most of the concerns custody, but as the interview develops the on this issue. The effect of the Murphy deci- officer feels that the probationer, because of sion may be summarized as shown in table an incriminating response, should now be 8–1. placed in custody? In these cases, the probationer is considered to be in custody at that The crucial question then is: When is a pro- point in time when the officer decided that bationer in the custody of a probation offi- the probationer should not be allowed to cer? This was not answered satisfactorily in leave. At that stage, the Miranda warnings Murphy. All the Court said was: “It is clear must be given if answers obtained are to that respondent was not ‘in custody’ for pur- be used during a subsequent criminal trial. poses of receiving Miranda protection since Obviously, that determination is subjective. UPERVISORS S there was no formal arrest or restraint on freedom of movement of the degree associat- There is a distinction therefore between ed with formal arrest.” It is, therefore, clear supervisory interrogation (where the

FFICERS AND Miranda warnings need not be given) and

O that a probationer who is under arrest is in AROLE /P ROBATION

P Table 8–1. The Effect of Murphy on the Use of Miranda Warnings

Should the Miranda warnings be given by the probation officer if the evidence obtained SSUES FOR I is to be admissible? EGAL L If Used in Revocation If Used in Trial THER

O Not in custody No No, unless probationer asserts rights In custody Depends on state law or Yes court decisions IABILITIES AND L IVIL C

132 CHAPTER custodial interrogation (where the Miranda boyfriend and raped, strangled, and beat to warnings must be given if the evidence is to death another woman. The parolee had a be used in a criminal trial, or in a revocation history of alcohol abuse and violence and proceeding, if state law so provides). The was highly intoxicated at the time he com- 8 S

Murphy case involved a probationer, but mitted these offenses. UPERVISION there are reasons to believe that the principles should apply to parole cases as well. The families of the victims filed a lawsuit against the Alaska state agency, contending ■■■ that the agency was negligent in (1) failing to impose special conditions of release; (2) failing to supervise the parolee adequately X. RECENT JUDICIAL while on parole; (3) allowing the parolee to DECISIONS CON- return to a small, isolated community without police officers or alcohol counseling; and CERNING LIABILITY (4) failing to warn his victims of his danger- OF PROBATION AND ous propensities. The court noted that the Alaska state agency was aware of the defen- PAROLE OFFICERS dant’s alcoholism and violent behavior. FOR SUPERVISION Moreover, the court rejected the state’s argument that in order for the state to have a duty of care, there must be a specifically ver the last decade, several court deci- identifiable victim. Instead, the court stated sions have examined personal liability O that victims in this case all belonged to a claims involving probation/parole officers. small, isolated community and that the resi- These court decisions have generally focused dents of this village constituted a “group of on two areas: negligent supervision of offend- victims” that were not unidentifiable mem- ers and assertions of defense of immunity to bers of the general public. suits against individual officers. Moreover, with regard to negligent supervision cases, Although negligent supervision cases are not the germane issues that the courts have been new, the last decade has seen an increase in asked to determine is whether the officer suits filed against individual probation and owed a duty to an identifiable victim or vic- parole officers. Taggart v. State and Sandau v. tims and whether the actions of the officer State 71 examined the issue of the “negligent created a reasonably foreseeable harm. With supervision” of a parolee and the responsibil- regard to claims of immunity, the germane ity that a parole officer has toward a third issue has been whether the officer acted in party injured by a parolee. In both these good faith. cases, the parole board for the State of Washington and several parole officers were A. Negligent Supervision sued by victims of crimes committed by Suits involving claims of negligent supervi- two persons who were being supervised on sion are not novel to the 1990s. In 1986, parole. In the Taggart case, the parolee had the Alaska Supreme Court, in Division of a history of violent sexual behavior and Corrections v. Neakok,70 was asked to decide substance abuse. He had been incarcerated whether the Alaska Department of Health numerous times in both juvenile and adult and Social Services, Division of Corrections, facilities. Despite his criminal history and and Alaska Parole Board were negligent in behavioral problems, a parole agent recom- placing a parolee in a small village that did mended that he be released from prison and not have police protection or the presence of once again placed on parole. The parole a parole officer. In this case, the parolee shot board accepted the recommendation of the and killed his teenage stepdaughter and her parole agent and approved parole for the 133 individual with special conditions that he officers are immune from liability for complete a substance abuse program and allegedly negligent parole supervision if their submit to urinalysis testing. While on parole, action is in furtherance of a statutory duty the individual failed to follow the conditions and in substantial compliance with the direc- imposed by the parole board and subse- tives of superiors and relevant regulatory quently assaulted another victim, causing guidelines. In addition, the court said that her severe injuries. parole officers did not have to show that their actions were reasonable once it had In the Sandau case, the parolee also had a been shown that the officers performed a history of committing violent crimes and statutory duty in compliance with the direc- also a history of substance abuse. While on tives of superiors and relevant guidelines. parole, the individual violated the conditions Moreover, the court stated that individual of release and his parole officer decided to liability would attach only if a parole offi- suspend his parole. Nevertheless, despite vio- cer’s conduct was not in substantial compli- lating the conditions of his parole, no parole ance with the directives of superiors and warrant was issued for his arrest. Instead, regulatory procedures. the parolee left the State of Washington and moved to Montana. Although the parole The court proceeded to determine whether agency was aware of the absconder status of the alleged actions by the parole officers in the parolee, there was a delay in issuing an Taggart and Sandau created a fact issue con- arrest warrant. While in Montana, the cerning whether their conduct was not in parolee raped a 9-year-old girl. substantial compliance with the rules and regulations of the parole agency. The court The victims in these two cases filed suit noted that the policy and procedures estab- against both the parole board in the State of lished by the parole agency in the State of Washington and individual parole officers. Washington required parole officers to take The plaintiffs alleged that certain parole offi- certain steps in supervising parolees (i.e., cers were negligent in recommending to the perform regular drug testing, conduct field parole board that the parolees be placed on contacts, and apply certain sanctions upon UPERVISORS

S parole, that the parole board was negligent learning of violations of the conditions of in granting parole, and that certain other parole). Moreover, the court observed that in parole officers were negligent in supervising both Taggart and Sandau, parole officers had

FFICERS AND the parolees while they were on parole.

O failed to perform certain responsibilities as required by agency policies and directives.

AROLE With regard to the parole board’s action

/P Hence, the court held that there existed a granting parole, the court stated that such fact issue concerning whether the parole offi- decisions are quasi-judicial and, therefore, cers had been negligent in supervising their ROBATION P the parole board is entitled to absolute parolees and remanded both cases to the immunity from liability. The court also lower court for resolution of the fact issues. extended absolute immunity to the recom- SSUES FOR I mendations of parole officers made to the Many courts in this country, especially in EGAL L parole board concerning the suitability of an the state of Washington, have continued

THER individual for parole, finding that these rec- to recognize a cause of action for negligent O ommendations were quasi-judicial in nature. supervision under certain fact situations. In On the issue of the supervision of parolees, Hertog v. City of Seattle,72 the defendant, a the court disagreed that officers were enti- convicted sex offender, was placed on proba- IABILITIES AND

L tled to absolute immunity for all of their tion. While on probation, the defendant

IVIL actions. Nevertheless, the court did give raped a 6-year-old girl. The guardian of the C them qualified immunity, saying that parole girl brought suit against certain individual 134 CHAPTER officers and the city of Seattle, claiming In another court decision, a Texas appellate negligent supervision. In particular, the court examined the claim of official immu- guardian alleged that the probation officer nity asserted by a probation officer in a failed to monitor the probationer’s compli- suit brought by a probationer. In Rhodes v. 8 74 S ance with the conditions of probation. Torres, the plaintiff had been placed on UPERVISION probation for the misdemeanor offense of The facts in this case showed that the proba- cruelty to animals. As a condition of her tion officer knew that the probationer was probation, the trial court had ordered her likely to cause bodily harm to others, that to perform 50 hours of community service his previous criminal history showed an for a local branch of the Society for the escalation to more serious sex offenses, and Prevention of Cruelty to Animals (SPCA). that his offenses were linked to alcohol and Having confirmed several times with the drug abuse. Moreover, testimony was intro- local branch that the plaintiff had failed to duced in the trial that an experienced officer complete her community service, the proba- would have provided intensive supervision tion officer supervising her filed a motion to to this type of offender. Consequently, the revoke her probation. After the motion had appellate court held that a material fact been filed, the local SPCA notified the pro- existed concerning whether the probation bation officer that there was a mistake with officer had a duty to take reasonable steps to the society’s records and the plaintiff had, prevent the probationer from committing a in fact, performed the requisite number of reasonably foreseeable injury. hours of community service.

B. Immunity Defenses The plaintiff filed a lawsuit against the probation officer; the probation officer claimed The courts over the last decade have also official immunity. The trial court agreed examined the defense of immunity to claims with the probation officer’s claim and dis- alleged against probation/parole officers. missed the lawsuit. The plaintiff appealed In Kipp v. Saetre,73 a judge attempted to this decision to an intermediary appellate “revoke” an offender’s probation without court. The appellate court stated that gov- affording the individual a hearing. In addi- ernment employees, including probation tion, a probation revocation warrant was officers, are entitled to official immunity issued on the defendant. In a postsentencing from suits arising from the performance of hearing, it was determined that the “revoca- their (1) discretionary duties in (2) good tion proceeding” was invalid. faith as long as they are (3) acting within The offender filed a lawsuit against the the scope of their authority. In this case, in judge, probation officer, and prosecuting examining whether the officer acted in good attorney, claiming that he had been falsely faith, the court adopted an objective, as arrested and imprisoned. On appeal, the opposed to subjective, test for determining Minnesota appellate court held that the pro- good faith. The court stated that a proba- bation officer was entitled to immunity. The tion officer acts in good faith in causing the court noted that it was the judge who made arrest of a probationer if a reasonably pru- the decision to issue the warrant for the dent officer, under the same or similar cir- offender’s arrest and directed the probation cumstances, could have believed that causing officer to do so accordingly. The probation the arrest of the probationer was lawful in officer was simply complying with the order light of clearly established law and the infor- of the judge. Thus, the appellate court held mation possessed by the officer at the time that a probation officer, when acting in asso- he filed the motion to revoke. ciation with a judge, could assert absolute In the Rhodes case, the appellate court noted immunity as a defense. that the probation officer had every reason 135 to believe that the plaintiff had not complet- Notes ed her community service hours as mandated 1. Note, Striking the Balance Between Privacy and by the trial court. The court observed that Supervision: The Fourth Amendment and Parole the officer not only verified and reverified and Probation Officer Searches of Parolees and the information on which he relied in filing Probationers, 51 N.Y.U. L. Rev. 800, 800 (1976). the motion but that he also consulted with his supervisor and the judge who had indi- 2. Griffin v. Wisconsin, 107 S. Ct. 3164 (1987). cated their concurrence with his decision to request that a motion to revoke be filed. Thus, 3. See Tamez v. State, 534 S.W.2d 686 (Tex. Cr. the court held that the evidence raised in the App. 1976), decided prior to the United States trial court conclusively established all of the Supreme Court holding in Griffin v. Wisconsin, elements of the defense of official immunity. 107 S. Ct. 3164 (1987).

■■■ 4. People v. Hale, 692 N.Y.S.2d 649, 93 N.Y.2d 454, 714 N.E.2d 861 (1999). See also, People v. Woods, 981 P.2d 1019, 88 Cal. Rptr. 2d 88 SUMMARY (1999).

his chapter deals with liability exposure 5. State v. Moses, 618 A.2d 478 (Vt. 1992). T in supervising offenders. The United States Supreme Court has declared that war- 6. United States v. Consuelo-Gonzales, 521 F.2d rantless searches of probationers and parolees 259, 262 (9th Cir. 1975). may be conducted under certain circumstances. Nevertheless, the Supreme Court 7. Id. at 263. has left several important issues regarding the fourth amendment rights of probationers 8. United States v. Bradley, 571 F.2d 787 and parolees for the lower courts to address. (4th Cir. 1978). It also deals with the complex issue of pos- 9. Id. at 789. sible liability for disclosure or nondisclosure

UPERVISORS of information. In general, officers are pro- S 10. United States v. Workman, 585 F.2d 1205 tected from liability in supervision but there (4th Cir. 1978). might be liability if a “special relationship”

FFICERS AND exists, whatever that means. However, offi- 11. Ryan v. State, 580 F.2d. 988 (9th Cir.), cert. O cers may be negligent if they could have denied, 440 U.S. 977 (1978); United States v.

AROLE reasonably foreseen that their actions in

/P Dally, 606 F.2d 861 (9th Cir. 1979). supervising an offender could result in harm to an identifiable victim. In the area of vio- 12. Ryan v. State, 580 F.2d 988 (9th Cir.), cert. ROBATION P lations, the law is clear: The officer has a denied, 440 U.S. 977 (1978). responsibility to inform the court or board of parole whenever the offender has breached 13. United States v. Ooley, 116 F.3d 370 SSUES FOR I the conditions of release. However, once the (9th Cir. 1997). EGAL

L officer has brought the matter to the atten- 14. In re Tyrell, 876 P.2d 445 (Cal. 1998).

THER tion of the proper authority, then he or she O has discharged his or her responsibility. In addition, monetary collections should be 15. The California Supreme Court extended the carefully handled by the field officer. Finally, holding in Tyrell to parolees in People v. Reyes,

IABILITIES AND 968 P.2d 445 (1998).

L as a general rule, an officer must give the

IVIL Miranda warnings if the probationer is in C custody and if the evidence obtained is to 136 be used in a criminal trial. CHAPTER 16. See People v. Mason, 488 P.2d 630 (Cal. 29. See Vernon’s Annotated Texas Penal Code, 1971); State v. Montgomery, 566 P.2d 1329 Section 46.15. (Ariz. 1977); State v. Josephson, 867 P.2d 993 (Idaho 1993); Allen v. State, 369 S.E.2d 909 30. See 61 Pennsylvania Statutes, sec. 309.1, and 8 S

(Ga. 1988); and Himmage v. State, 469 P.2d 763 New York State Criminal Procedural Law, art. UPERVISION (Nev. 1972). 2.10, sec. 23.

17. See United States v. Jarral, 754 F.2d 1457 31. See Daniels v. Williams, 106 S. Ct. 662 (9th Cir. 1985). See also, United States v. (1986). Richardson, 849 F.2d 439 (9th Cir. 1988). 32. See Estelle v. Gamble, 429 U.S. 97 (1976). 18. See United States v. Watts, 67 F.3d 795 See also, County of Sacramento v. Lewis, 523 (9th Cir. 1995). U.S. 833 (1998) and Schaefer v. Goch and Marathon County, No. 97 C 394 (7th Cir. 19. See United States v. McDonald, 21 F.3d 1998). 1117 (9th Cir. 1994). 33. See City of Canton v. Harris, 109 S. Ct. 20. See Toney v. State, 572 So. 2d 1308 (Ala. Cr. 1197 (1989). See also, Paiva v. City of Reno, 939 App. 1990). F. Supp. 1474 (D. Nev. 1996).

21. Hill, Rights of the Convicted Felon on Parole, 34. Popow v. Margate, 476 F. Supp. 1237 13 U. Rich. L. Rev. 370, 371 (1979). See also, (D. N.J. 1979). State v. Perbix, 331 N.W.2d 14 (ND 1983). 35. Russo v. City of Cincinnati, 953 F.2d 1036 22. People v. Anderson, 189 Colo. 34, 536 P.2d (6th Cir. 1992). 302 (1975). 36. City of Canton v. Harris, 109 S. Ct. 1197 23. People v. Santos, 82 Misc. 2d 184, 368 (1989). N.Y.S.2d 130, (N.Y. County Sup. Ct. 1975). 37. Tennessee v. Garner, 105 S. Ct. 1694 (1985). 24. State v. Williams, 486 S.W.2d 468 (Mo. 1972). See also, People v. Anderson, 189 Colo. 38. J. Kutcher, The Legal Responsibility of 34, 536 P.2d 302 (1975); State v. Pinson, 104 Probation Officers in Supervision, 41 Fed. Prob. Idaho 227, 657 P.2d 1095 (1983). 35, 37-38 (1977).

25. State v. Sievers, 511 N.W.2d 205, 2 Neb. 39. Anderson v. Boyd, 714 F.2d 906 (9th Cir. App. 463 (1994). 1983).

26. Souders v. Kroboth, 547 F. Supp. 187 40. State v. Roberts, 14 Wash. App. 727, 544 (U.S.D. Pa. 1982); Hunter v. State, 139 Ga. P.2d 754 (1976). App. 676, 229 S.E.2d 505 (1976); State v. Davies, 9 Or. App. 412, 496 P.2d 923 (1972). 41. Id. at 730, 544 P.2d at 757.

27. See State v. Epperson, 576 So. 2d 96 42. Fare v. Michael C., 442 U.S. 207 (1979). (La. App. 1991). 43. Id. at 719-720. 28. See People v. Reyes, 968 P.2d 445 44. See Industrial Foundation of the South v. (Cal. 1998). Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976).

137 45. See Victoria Bank and Trust v. Brady, 811 61. People v. Beckler, 459 N.E.2d 672 (Ill. App. S.W.2d 931 (Tex. 1991). Ct. 1984).

46. The federal regulations implementing 42 62. United States v. Glasgow, 389 F. Supp. 217 U.S.C. 290dd-2 are found in 42 CFR Part 35. (D.D.C. 1975); Jones v. State, 360 So. 2d 1158 (Fla. Dist. Ct. App. 1978); State v. McCain, 150 47. Unpublished remarks of Judd D. Ketcher to N.J. Super. 497, 376 A.2d 185 (Super. Ct. App. the American Probation and Parole Association Div. 1977); State v. Marshall, 247 N.W.2d 484 (October 29, 1980). (S.D. 1976).

48. Guide to Judiciary Polices and Procedures: 63. State v. Thieme, 89 Wisc. 2d 287, 278 Probation Manual, Chapter 4, 1983. N.W.2d 274 (1979).

49. Johnson v. State, 69 Cal. 2d 782, 447 P.2d 64. Cothron v. State, 377 So. 2d 255 (Fla. Dist. 352, 73 Cal. Rptr. 240 (1968). Ct. App. 1979).

50. Georgen v. State, 196 N.Y.S.2d 455, 18 65. People v. Julye, 64 A.D.2d 614, 406 Misc. 2d 1085 (Ct. Cl. 1959). N.Y.S.2d 529 (1978).

51. Rieser v. District of Columbia, 563 F.2d 462 66. United States v. Crocker, 435 F.2d 601 (D.C. Cir. 1977). (1971).

52. Meyers v. Los Angeles County Probation 67. Pouliot v. Hodgdon, 119 N.H. 437, 402 Department, 78 Cal. App. 3d 309, 144 Cal. A.2d 199 (1979). Rptr. 186 (1978). 68. McCrady v. Mahon, 119 N.H. 247, 400 53. Johnson v. State, 69 Cal. 2d 782, 447 P.2d A.2d 1173 (1979). 352, 73 Cal. Rptr. 240 (1968). 69. Bearden v. Georgia, 461 U.S. 660 (1983). 54. Id. at 785, 447 P.2d at 355, 73 Cal. Rptr. at UPERVISORS

S 243. 70. Division of Corrections v. Neakok, 721 P.2d 1121 (Alaska Sup. Ct. 1986). 55. Georgen v. State, 196 N.Y.S.2d 455, 18

FFICERS AND Misc. 2d 1085 (Ct. Cl. 1959). 71. See Taggart v. State and Sandau v. State, 822 O P.2d 243 (Wash. Sup. 1992).

AROLE 56. Rieser v. District of Columbia, 563 F.2d 462 /P (D.C. Cir. 1977). 72. Hertog v. City of Seattle, 943 P.2d 1153 (Wash. App. 1997).

ROBATION 57. Id. at 479. P 73. Kipp v. Saetre, 454 N.W.2d 639 (Minn. 58. Meyers v. Los Angeles County Probation App. 1990). SSUES FOR I Department, 78 Cal. App. 3d 309, 144 Cal.

EGAL Rptr. 186 (1978). 74. Rhodes v. Torres, 901 S.W.2d 794 (Tex. App. L Houston [14th Dist.], 1995).

THER 59. Semler v. Psychiatric Institute, 538 F.2d 121 O (4th Cir. 1976).

60. Flores v. State, 904 S.W.2d 129 (Tex. Cr. IABILITIES AND

L App. 1995), cert. denied, 516 U.S. 050 (1996). IVIL C

138 CHAPTER 9 Revocation

INTRODUCTION

I. PAROLE REVOCATION: MORRISSEY V. BREWER IS THE LEADING CASE

A. The Factual Setting B. The Reasoning of the Court C. The Holding of the Court 1. Preliminary Hearing 2. Revocation Hearing

II. COURT DECISIONS AFTER MORRISSEY

A. Preliminary Hearing Issues 1. Location 2. Promptness 3. Form of Notice 4. Impartial Hearing Officer B. Revocation Hearing Issues 1. Notice of Hearing 2. Disclosure of Evidence 3. Confrontation and Cross-Examination 4. Hearsay Admissibility

III. PROBATION REVOCATION: GAGNON V. SCARPELLI IS THE LEADING CASE

IV. OTHER ISSUES IN PAROLE AND PROBATION HPE 9 CHAPTER REVOCATION PROCEEDINGS A. Necessity of Preliminary Hearing B. Standard of Proof C. Nature of Proof Required D. Limitation on Testimony E. Right to Speedy Hearing

V. OTHER SUPREME COURT DECISIONS AFFECTING REVOCATION PROCEEDINGS

A. Illegally Obtained Evidence May Be Admitted: The Case of Pennsylvania Board of Probation and Parole v. Scott B. Equal Protection and Revocation: The Case of Bearden v. Georgia C. Interrogations and Miranda: Cases Prior to Minnesota v. Murphy D. Interrogations and Miranda: The Effect of Minnesota v. Murphy E. Due Process and Probation Revocation: The Case of Black v. Romano

VI. CASES ON LIABILITY FOR REVOCATION

VII. EXTRADITION

SUMMARY

NOTES CHAPTER INTRODUCTION was arrested in his hometown as a parole violator and held in a local jail. A week later, he release of an offender on probation after review of the officer’s written report, the Iowa Board of Parole revoked Morrissey’s 9 or parole implies that, in the best judg- T R ment of the releasing authority, the releasee parole, and he was returned to prison. EVOCATION will thereafter respect and abide by the Morrissey received no hearing prior to his law and observe the conditions of release. revocation. Unfortunately, this expectation does not Morrissey allegedly had violated the condi- always materialize. In 1998, 17 percent of all tions of his parole by buying a car under probationers and 42 percent of all parolees an assumed name and operating it without were reincarcerated because of a technical permission of his parole officer. He was also violation of the conditions of release or accused of giving a false address to the police because of the commission of a new offense.1 and an insurance company after a minor Consequently, situations arise that warrant traffic accident. Additionally, Morrissey was consideration of revocation of probation or alleged to have obtained credit under an parole. All field officers must be aware of the assumed name and failed to report his resi- basic legal principles that govern revocation, dence to his parole officer. According to the as well as their agencies’ detailed procedures. parole officer’s report, Morrissey admitted The controlling judicial decisions on revoca- some of these technical violations of his tion are Morrissey v. Brewer,2 a 1972 Supreme parole conditions. Court case, and Gagnon v. Scarpelli,3 a case After his parole was revoked, Morrissey the Supreme Court decided the year follow- exhausted his state remedies and filed a ing the Morrissey v. Brewer decision. In habeas corpus petition in federal district Morrissey, the Supreme Court held for the court. He charged it was a denial of due first time that parolees faced with parole rev- process to revoke his parole without a ocation were entitled to certain due process hearing. The federal district court and the rights. In Gagnon v. Scarpelli, the Supreme Eighth Circuit Court of Appeals both denied Court extended its legal holding in Morrissey the petition, but the United States Supreme to probation revocation hearings, thus plac- Court granted his application for writ of ing revocation of parolees and probationers certiorari. The Supreme Court reversed the on the same level. decisions of the two lower courts. ■■■ B. The Reasoning of the Court I. PAROLE REVOCA- The Court began by observing that parole has become an integral part of the correc- TION: MORRISSEY tional system and that it serves a number of useful purposes. The Court said it is implicit V. BREWER IS THE in the system that the parolee is entitled to LEADING CASE retain his liberty as long as he substantially abides by the conditions of parole. It identified the components of the revocation A. The Factual Setting process as, first, a wholly retrospective factu- Morrissey was convicted of passing a bad al inquiry concerning whether parole terms check in Iowa in 1967. Upon a plea of were violated. Second, the Court further guilty, he was sentenced to 7 years in prison. noted that if it were found that a violation He was paroled in June 1968. Seven months has occurred then is it necessary to decide later, at the direction of his parole officer, he the proper disposition of the matter, i.e., 141 whether to revoke the parole of the individ- 1. Preliminary Hearing ual and send him back to prison or to con- A preliminary hearing is necessary, the tinue his parole with or without additional Court said, because there will often be a conditions of parole. substantial delay between the arrest of a parolee and the date of the revocation hear- The Court observed that revocation is not ing; there may also be a substantial distance part of a criminal prosecution and “thus the between the place of arrest and the final full panoply of rights due a defendant in hearing.6 such a proceeding does not apply to parole 4 revocation.” It acknowledged that revoca- [S]ome minimal inquiry should be tion is the deprivation of conditional liberty, conducted at or reasonably near the not the absolute liberty of the ordinary citi- place of the alleged parole violation or zen. The Court then examined the nature arrest and as promptly as convenient of this limited liberty in order to determine after arrest while information is fresh whether it is within the ambit of the due and sources are available. . . . Such an process guarantees found in the 14th inquiry should be seen as in the nature 5 amendment. The Court said yes, saying: of a “preliminary hearing” to determine whether there is probable cause We see, therefore, that the liberty of or reasonable ground to believe that the parolee, although indeterminate, the arrested parolee has committed acts includes many of the core values of that would constitute a violation of unqualified liberty and its termination parole conditions. inflicts a “grievous loss” on the parolee and often on others. It is hardly useful The Court specified that the hearing officer any longer to try to deal with this prob- at this inquiry should be someone who is lem in terms of whether the parolee’s not involved in the case (not necessarily a liberty is a “right” or a “privilege.” By judicial officer) and that the parolee should whatever name, the liberty is valuable be given notice of the hearing and of its and must be seen as within the protec- purpose. On the request of the parolee, per- UPERVISORS S tion of the fourteenth amendment. sons who have given adverse information Its termination calls for some orderly on which the parole violation is based are process, however informal. to be made available for questioning in the FFICERS AND

O parolee’s presence. However, confrontation Finally, the Court assessed the governmen- and cross-examination can be denied if the

AROLE tal interest and found that it, too, would

/P hearing officer decides that the informant be served by an informal hearing process would be placed at risk if identified. Based designed to develop the facts concerning the

ROBATION upon the information presented (which he P alleged violation and the equities involved in must summarize for the record), the hear- the sanction of revocation. ing officer should determine if there is SSUES FOR I reason to warrant the parolee’s continued C. The Holding of the Court

EGAL detention. The hearing officer must state L After concluding that some process was due, the reasons for his decision and the evidence THER

O the Court proceeded to determine what pro- relied on. The Court stated that the process cedures are required. The Court held that could be informal. two hearings should be conducted. IABILITIES AND L IVIL C

142 CHAPTER 2. Revocation Hearing Court held that decisions would have to be At the request of the parolee, the Court said, made on a case-by-case basis, with consider- there must be a second hearing to lead to a ation given to the presence or absence of contested facts, any possible mitigating cir- 9 final determination of any contested relevant R facts and consideration of whether the facts cumstances to be considered in opposition EVOCATION warrant revocation, saying:7 to revocation, and the apparent ability of the probationer or parolee to present his case The parolee must have an opportunity effectively. Gagnon v. Scarpelli also held that to be heard and to show, if he can, that the above rights given to parolees must he did not violate the conditions, or, also be given to probationers in probation if he did, that circumstances in mitiga- revocation proceedings (see section III, tion suggest the violation does not war- Probation Revocation: Gagnon v. Scarpelli rant revocation. The revocation hearing Is the Leading Case). must be tendered within a reasonable time after the parolee is taken into ■■■ custody. A lapse of two months, as the State suggests occurs in some cases, II. COURT DECISIONS would not appear to be unreasonable. AFTER MORRISSEY The Court went on to specify procedures to be observed in the revocation hearing. lthough Morrissey was unusually They include: A detailed, the facts of the case did not present the infinite variety of situations (a) Written notice of the claimed violation encountered in day-to-day administration of parole; of the probation and parole systems. In the (b) Disclosure to the parolee of evidence nearly three decades since Morrissey was against him; decided, there has been considerable litigation seeking to hone its rules and define the (c) An opportunity to be heard in person parameters of those rules. This section pres- and to present witnesses and documentary ents court decisions addressing a number of evidence; significant issues. Legislatures and adminis- (d) The right to confront and cross- trative agencies have also sought to codify examine adverse witnesses (unless the the Morrissey rules for individual systems, hearing officer specifically finds good but these legislative refinements are not con- cause for not allowing confrontation); sidered here. What follows addresses only court decisions. (e) A “neutral and detached” hearing body, such as a traditional parole board, members of which need not be judicial A. Preliminary Hearing Issues officers or lawyers; and 1. Location (f) A written statement by the fact finders The only time a problem appears to arise as to the evidence relied on and reasons here is when violations have occurred in for revoking parole.8 different geographical jurisdictions. An Eighth Circuit Court of Appeals decision10 The Court did not decide the question as appears to state the general rule. The to whether the parolee could have the assis- “arrest” referred to by the Supreme Court tance of retained counsel, or appointed in Morrissey refers to the probation or parole counsel if he were indigent. When this issue violation arrest. Hence, the requirement that was addressed in Gagnon v. Scarpelli,9 the the preliminary hearing be held “near” the 143 place of arrest was not violated when a preliminary and revocation hearing is utilized, Nebraska probationer received a Nebraska such as in probation revocation proceedings, hearing to consider alleged probation viola- the notice must allege the violation with tions that occurred in Oklahoma. greater specificity than would be required for only a preliminary hearing.18 2. Promptness The jurisdictions vary considerably on this 4. Impartial Hearing Officer point. At one end, New York typifies a point The person conducting the hearing need not of view that the determination of what con- be a judicial officer or an attorney. He or she stitutes a “reasonably prompt inquiry” must only must be impartial and detached, which be made on a case-by-case basis.11 California appears to exclude only the parole officer case law suggests the outside limit of prompt- who initiated the arrest. A different parole ness is 4 months, after which charges will be officer may conduct the hearing.19 struck.12 This seems reasonable, perhaps gen- erous, because the period does not begin B. Revocation Hearing Issues when cause to consider revocation is discovered; it only starts when the probationer or 1. Notice of Hearing parolee is summoned or arrested. Another Morrissey requires that “written notice of the perspective is typified by Arizona law, where claimed violation of parole” be given. The the limits of promptness are not less than 7 states have shown considerable variation in or more than 20 days after service of sum- determining the minimally acceptable form mons or warrant, unless the probationer of notice. Most states have demanded reason- requests otherwise.13 ably complete notice to comply with standards of fairness. However, since Morrissey Some courts have held that it is possible to did not delineate any definite standards, dispense with the preliminary hearing and states have been left to their own devices. retain the necessary due process. The Supreme For example, North Dakota found adequate Court held this to be the case in a 1976 a notice that did not mention the time and decision14 concerning a parolee who had place of the hearing.20 It is the majority rule UPERVISORS S been convicted of a new offense. The con- that when notice is not given because the viction conclusively establishes the necessary parolee makes himself unavailable, his fail- probable cause in such situations. Also, if ure to receive it does not violate his consti- FFICERS AND

O the formal revocation hearing is held within tutional rights.21 Although it is not always a reasonable time after the alleged violation, necessary that the parolee receive the notice, AROLE

/P a single revocation hearing may be suffi- the mere affidavit of a hearing officer that cient. The view is typified by Michigan and he had directed that a violation report be 22 ROBATION appears to be the preferred method among sent to the individual was not enough. P states.15 The constitutionality of this proce- Presumably, the failure to receive notice dure was challenged in a Texas case, which must be through the fault of the parolee. SSUES FOR I went to the United States Supreme Court.16

EGAL The Court, however, dismissed the appeal 2. Disclosure of Evidence L without authoritatively settling this issue. The Morrissey requirement of disclosure of THER O the evidence against the parolee at the revo- 3. Form of Notice cation hearing may be met by a number of The general rule is typified by an Eighth methods. In some jurisdictions, mere verbal

IABILITIES AND Circuit ruling that requires written notice only notice has sufficed, although written notice L with respect to the final hearing and not with

IVIL is generally preferable. Most jurisdictions C respect to a preliminary hearing.17 However, in allow the parolee access to pertinent official 144 situations in which an acceptable combined records and materials.23 However, as long as CHAPTER the parolee is advised in some manner of officer’s testimony that the defendant the evidence against him or her, the parole had stolen 40 dollars from his employer officer need not reveal his or her report or because it was hearsay unsupported by evi- notes to the parolee. A federal district court dence.28 Due process was violated because 9 R in New York upheld denial of a parolee’s there was no confrontation and cross- EVOCATION access to his parole officer’s chronological examination of the employer by the de- entries of conversations with the parolee.24 fendant. In Pennsylvania, testimony of a probation officer of what he was told by a 3. Confrontation and Cross-Examination hospital staff member was hearsay and not In Morrissey, the Supreme Court said that at sufficient to revoke probation. Good cause a revocation hearing a parolee should have was not shown for denying confrontation 29 the right to confront and cross-examine and cross-examination. adverse witnesses, unless the hearing officer There is some support for the proposition excuses confrontation for good cause. The that an officer must be sufficiently familiar Court also said that the revocation hearing with the facts of the defendant’s case to testi- was not the same as a criminal trial and, as a fy. Even though hearsay is permitted in revo- result, the process should be flexible enough cation proceedings in Florida, probation to permit consideration of material, such revocation based solely on the testimony of as letters and affidavits, that would not be an officer who took the case after the viola- allowable in a trial. These statements by the tions occurred was not allowed.30 In a similar Court are somewhat contradictory because vein, the testimony of a probation officer was the reason that such materials are usually not allowed at a criminal trial for armed rob- excluded (when offered to prove a material bery because the officer was not an intimate fact) is that their consideration would deprive acquaintance of the defendant, and he had a defendant of his or her right of confronta- not seen the probationer for 7 months.31 tion and cross-examination. What have the This could be construed in the parole or courts said on this issue? probation revocation setting to mean that remoteness in time of contact with a parolee 4. Hearsay Admissibility (or probationer) may have some bearing on Whether an officer may present hearsay testi- the validity of an officer’s testimony, espe- mony at a revocation proceeding has received cially testimony governing any general varied treatment. Hearsay has been held propensity of the part of the offender to 25 26 admissible in Florida and New York. In engage in particular forms of behavior. most other states, hearsay has been construed to violate the due process requirements of The rule forbidding revocation on the basis Morrissey. All states have since enacted statutes of hearsay evidence cannot be avoided sim- compelling the appearance of witnesses for ply because the officer presents the evidence the defendant and permitting their confronta- in a written report rather than in verbal tes- tion and cross-examination unless good cause timony at the hearing. An Oklahoma court is shown for not allowing it.27 stated, concerning a hearsay statement, that the fact that the probation officer had writ- In practice, exclusion of hearsay evidence ten the statement into his report did not means that an officer’s testimony that he make the statement admissible under the has been informed of a violation of parole “business records” exception to the hearsay conditions, standing alone, will not be suffi- rule.32 Louisiana applied this same reasoning cient for revocation. In most cases, the per- in a case in which a probation officer stated son who witnessed the violation will be in his report that the defendant’s parents had required to testify. In Colorado, revocation information that the defendant was sniffing was not allowed based on a probation glue.33 The requirement of confrontation 145 and cross-examination of witnesses cannot The Supreme Court, noting its earlier hold- be avoided by means of an affidavit for the ing in Morrissey, observed that there was same reasons. In Pennsylvania, an affidavit little if no difference between the revoca- by a police officer that the defendant pos- tion of parole and probation and that logic sessed narcotics was not sufficient for revo- would dictate that the legal principles enun- cation.34 The majority of courts apparently ciated in Morrissey should be held applicable require fairly strict compliance with the to probation revocations. Thus the Court Morrissey requirements of confrontation and held that a probationer, like a parolee, is cross-examination of witnesses, so informa- entitled to a preliminary and a final revocation contained in the officer’s report will tion hearing under the conditions specified usually need to be corroborated by extrinsic in Morrissey v. Brewer. evidence or testimony. The Court next turned to the second matter ■■■ raised by the defendant in his application, i.e., his not being afforded counsel at the revocation proceeding. This was an issue that had III. PROBATION not been addressed by the Court in Morrissey. REVOCATION: Although the Supreme Court had previously held that an indigent defendant has the right GAGNON V. SCARPELLI to court-appointed counsel whenever he/she IS THE LEADING was charged with an offense that carried the possibility of imprisonment or confinement CASE in jail,36 the Court in Gagnon v. Scarpelli refused to hold that a probationer or parolee n 1973, the Supreme Court considered had an absolute constitutional right to the Iwhether its holding in Morrissey v. Brewer appointment of counsel in a revocation pro- should apply to probation revocations. In ceeding. The Court noted that a revocation Gagnon v. Scarpelli,35 the defendant had been proceeding, unlike a criminal trial, was not convicted in a Wisconsin state court for a true adversarial proceeding. Moreover, the UPERVISORS S armed robbery but placed on probation for Court observed that certain inherent objec- 7 years. The defendant was permitted to tives in probation and parole, such as the move to Cook County, Illinois, under the speedy disposition of revocation matters FFICERS AND

O Interstate Compact. Nevertheless, while in and the overall goal of successfully reinte- Illinois, he was arrested for burglary of a grating an offender back into society, would AROLE

/P house. The state of Wisconsin revoked his be thwarted if counsel were appointed to a probation without giving him a hearing. probationer or parolee in all cases. ROBATION P After having been imprisoned in Green Bay, Nevertheless the Court recognized that in Wisconsin, to serve his sentence for armed certain circumstances, fundamental fairness

SSUES FOR robbery, the defendant filed an application would require that counsel be appointed I for writ of habeas corpus. The defendant for an indigent offender in a revocation EGAL L raised two issues in his application: one, that proceeding. The Court stated:

THER he was denied a hearing on his revocation of O probation, and two, that he was not afforded Presumptively, it may be said that counsel. He contended that both these mat- counsel should be provided in cases ters involved his due process rights. The where probationer or parolee makes IABILITIES AND

L United States Supreme Court granted his such a request, based on a timely and

IVIL application for writ of certiorari and accept- colorable claim (1) that he has not C ed the case for decision. committed the alleged violation of the 146 CHAPTER conditions upon which he is at liberty; United States Parole Commission,38 the Ninth or (2) that, even if the violation is a Circuit United States Court of Appeals stat- matter of public record or is uncontest- ed that, in circumstances in which the law ed, there are substantial reasons which leaves within the discretion of the parole 9 R

justified or mitigated the violation and board the decision as to whether or not to EVOCATION make revocation inappropriate, and revoke an individual’s parole, not only is the that the reasons are complex or other- individual entitled to a revocation hearing wise difficult to develop or present. but also the parole authority must abide by the six requirements of accurate fact-finding Thus the Court held that the decision to set out in Morrissey as necessary to satisfy the appoint counsel for an indigent probationer “minimum requirements of due process.” or parolee must be made on a case-by-case basis. Appellate courts have had difficulty, however, in interpreting the holding of the Supreme ■■■ Court in Morrissey when the Court stated:

We have no thought to create an inflex- IV. OTHER ISSUES IN ible structure for parole revocation pro- PAROLE AND PROBA- cedures. The few basic requirements set out above, which are applicable to TION REVOCATION future revocations of parole, should PROCEEDINGS not impose a great burden on any state’s parole system. or some issues, Morrissey and Gagnon This statement has raised the question con- offer little assistance. For instance, must F cerning whether the due process guarantees revocation be limited to violation of explicit in Morrissey are absolute, or whether the flex- conditions? Would not any illegal act violate ibility mentioned permits exceptions to be the spirit of probation or parole statutes? Is, made under justifiable circumstances. Thus in the case of an arrest, the evidence of an appellate courts have struggled over the years illegal act conclusive? Is conviction a required to determine whether the six basic require- prerequisite to a finding that an illegal act ments established in Morrissey are ironclad occurred? Although Morrissey was extensive due process guarantees or whether some and detailed enough to provide guidance on deviations are permissible. many issues, answers in other areas were not suggested directly. How much proof, for example, is needed to support the decision A. Necessity of Preliminary to revoke? The response of the courts to a Hearing number of these supplemental questions is Despite the Court’s holding in Morrissey presented in this section. mandating a preliminary hearing, appellate courts under certain circumstances have Appellate courts have scrupulously attempt- dispensed with a preliminary hearing. The ed to apply the Supreme Court’s holdings in United States Supreme Court in Moody v. Morrissey and Gagnon. As recently as 1999, Daggett 39 held that if a parole violation war- the Fifth Circuit United States Court of rant alleges that the parolee violated the con- Appeals in Williams v. Johnson37 held that the ditions of his parole by being convicted of due process guarantees enunciated by the (as opposed to charged with) another crimi- Supreme Court in Morrissey are as equally nal offense, then a preliminary hearing is applicable to revocation hearings as to pre- not required. The Court reasoned that since liminary hearings. Moreover, in John v. the purpose of the preliminary hearing is to 147 establish probable cause to believe that the conditions was insufficient for revocation.45 alleged violation occurred, a criminal con- Often the testimony of the officer in charge viction obtained in a court of law suffices to of a probationer or parolee is crucial at a establish that probable cause exists to believe revocation proceeding. Whether the testi- that the parolee committed the criminal mony of an officer—unsupported by other offense. In Ellis v. District of Columbia,40 evidence—is sufficient to revoke parole varies the United States Court of Appeals for the in different states. A Texas court held that District of Columbia held that the policy revocation cannot be based merely on the in the District of Columbia mandating that conclusionary statement of a probation offi- revocation hearings be conducted within 30 cer that the probationer failed to report at days of the arrest of a parolee satisfied the least once a month as directed.46 Oklahoma requirement that a preliminary hearing be did not permit revocation based solely on conducted, and thus the preliminary and an officer’s testimony without supporting revocation hearing could be combined. evidence that the defendant had moved to Missouri.47 North Carolina reached the oppo- B. Standard of Proof site result, holding that the uncontradicted testimony of a probation officer—that the The standard of proof required to support defendant had been fired from his job and revocation will have an effect upon an offi- had not made payment toward his probation cer’s decision to submit the case to the costs—was sufficient to support a revocation.48 authority entrusted with making the revoca- Similarly, in Georgia (where only “slight evi- tion decision. Where an officer is conduct- dence” is needed), probation revocation was ing the revocation hearing, knowledge of the upheld based solely on the testimony of an standard of proof required for revocation in arresting officer that in his opinion the proba- the jurisdiction is essential. There is wide tioner was driving while intoxicated.49 (Even latitude among the states in determining the laymen usually are allowed to give an opinion proper standard, and any formulation of a on drunkenness.) It seems probable that simi- general rule would be of little help. For lar reasoning would be applied to a parole example, Georgia requires only “slight evi- 41 officer in Georgia. UPERVISORS dence” for revocation, whereas Oklahoma S requires that the decision be supported by a Courts probably will insist on detail in preponderance of evidence that could have appropriate cases, rather than accept an 42

FFICERS AND been deemed more probably true than not.

O officer’s conclusions about an event. In Parole officers in each jurisdiction should an Oregon case,50 a probation officer was

AROLE consult legal counsel or departmental stan-

/P required at a revocation hearing to testify to dards to determine the standard of proof the precise relationship of the probationer required to revoke parole. with the 4-year-old daughter of the woman ROBATION P with whom the probationer was living. A C. Nature of Proof Required probation condition prohibited the proba- SSUES FOR I Illinois has held that once a defendant has tioner from associating with young girls. The court was unwilling to equate living

EGAL admitted the grounds for violation of proba- L tion, the admission eliminates the necessity in the same household with the proscribed

THER 43 “association”; the court wanted to draw its

O of proof by the state. Louisiana, on the other hand, has held revocation improper where own conclusion from the facts observed by the only evidence relied upon was the proba- or known to the officer. tioner’s uncounseled guilty plea.44 Florida IABILITIES AND L has held that some overt act is required to As the above cases demonstrate, there is no

IVIL clear rule on whether a parole (or probation)

C revoke parole. The mere statement of the parolee that he intended to violate his parole officer’s testimony unsupported by other 148 CHAPTER evidence will be sufficient to revoke parole might not be a qualified witness. A certified (or probation). But it must be noted that copy of a police record or the testimony of a uncorroborated testimony concerning an bank officer might be deemed necessary to observed event is admissible. Thus, if the prove such matters. 9 R parole or probation officer has personal EVOCATION knowledge of the event that forms the basis Moreover, what type of evidence is probative of the alleged violation (e.g., saw the offend- is also dependent on what violation of the er consuming alcohol or present at a place conditions of release is alleged. For example, or location prohibited by the court or parole proof that a parolee or probationer was board), or the offender made an admission arrested for a new offense would not be suffi- against his penal interest to the officer (e.g., cient to prove an allegation that the offender admitting that he had been taking drugs committed a new offense. However, proof of when ordered not to by the court or parole an arrest might be sufficient if the allegation board), then this evidence is generally suffi- were that a condition of the offender’s release cient to justify a court or parole board revok- was to report all new arrests to his probation ing the offender’s conditional release. or parolee officer and he had failed to do so. Thus in determining whether to seek revoca- Probation/parole officers should also recog- tion of an offender’s conditional release, a nize that although testimony might be probation or parole officer must not only objectionable for one purpose, it might, nev- consider the probative value of any evidence ertheless, be received for another legal pur- he may have concerning a particular viola- pose. For example, the Supreme Court has tion of the conditions of release, but also held that even though evidence obtained in evaluate the probative value of this evidence violation of Miranda may not be introduced in light of other conditions imposed by the in the case chiefly to prove that a defendant court or parole board. actually committed the criminal offense alleged, such evidence may still be intro- A West Virginia case illustrates the points duced for impeachment purposes if the made regarding the admissibility of evidence defendant takes the stand and denies that for limited purposes.52 In that case, the he committed the act alleged by the State.51 defendant had been charged as an accessory Thus, probation and parole officers need to murder. He took the stand in his own to be aware that even if certain evidence is defense and, in the course of seeking to ordinarily excludible in a revocation hear- establish his good character, acknowledged ing, it may still be admissible as rebuttal that he had been previously convicted in evidence, for impeachment purposes, or Ohio, but claimed that he had observed the to show the state of mind of the offender. conditions of his parole. The defendant had in fact violated a nonassociation parole con- In addition, if a probation or parole officer dition. Ordinarily observance of parole con- does not have personal knowledge of the ditions was clearly collateral to the murder incident that forms the basis of the revoca- prosecution; thus, the rules of evidence nor- tion proceeding, then ordinarily any testi- mally would bar the testimony because mony on the part of the officer would not impeachment is not permitted on a collat- be probative, meaning it could not support eral matter. Nevertheless the court held, in a finding that the probationer or parolee this particular case, that the testimony could actually committed the violation alleged. be received for the limited purpose of sug- Thus, on the issue of whether a probationer gesting that the defendant did not always or parolee had a particular history of arrests, tell the truth; hence, his version of the facts or had written certain bad checks, the officer in the murder case might not be credible.

149 D. Limitation on Testimony was subsequently granted probation and The cases do not tell the precise limits on the released. While on probation, the defendant relevance of the testimony or other evidence was arrested for drug trafficking. The United that may be offered to support revocation. States Parole Commission issued a parole One New York case,53 however, shows that violator warrant. However, at the hearing there are limits. In that case, after the revoca- to revoke his parole, the parole commission tion hearing but before any decision was decided to withdraw the warrant and to announced, an officer discovered that the have the defendant extradited to New Jersey parolee had written more bad checks than in order to be tried on the state drug traf- were considered at the hearing; he brought ficking charges. this information to the attention of the hear- Several years after the decision to remand ing officer. In a summary opinion, which the defendant to the custody of New Jersey did not explain the court’s reasoning, this officials, the United States Parole Commission was held to be improper, and a new hearing issued a second parole violator warrant, alleg- before a different examiner was ordered. A ing the same conduct alleged in the first number of Morrissey rights arguably were warrant and also alleging that the defendant interfered with. There was no written notice had failed to report to his parole officer while about these additional “charges,” and the awaiting trial on the New Jersey charges. parolee had no opportunity to refute or However, the parole commission did not explain them. Moreover, the additional infor- move to execute the warrant, i.e., cause the mation might have been viewed as tending parolee’s arrest, until 51/2 years after issuing the to bias the hearing examiner. warrant. The parolee was eventually arrested on the warrant, and the parole commission E. Right to Speedy Hearing finally proceeded to revoke his parole. The Generally, most courts have held that a pro- defendant/parolee contended on appeal that bationer or parolee does not have a sixth his sixth amendment and due process rights amendment right to a speedy hearing on the were violated by the delay of the parole com- allegations of violations of the conditions of mission in executing the second violation

UPERVISORS 1 S release. Instead appellate courts have held warrant 5 /2 years after it had been issued. that the sixth amendment right to a speedy trial as guaranteed in the United States Although the United States Sixth Circuit

FFICERS AND Constitution is applicable only to criminal Court of Appeals rejected his assertion of a O trials and not to revocation proceedings. sixth amendment right to a speedy revoca-

AROLE Nevertheless, despite holdings that a probation hearing, the court was open to consid- /P tioner or parolee facing a revocation hearing ering a possible due process infringement. does not have a sixth amendment right to a The Court noted that previous courts, ROBATION P speedy hearing, courts have entertained the in examining this issue, had held that a notion that an unacceptable delay procuring parolee, in complaining of the delay in

SSUES FOR arresting and then conducting a revocation

I the arrest (as opposed to conducting the hearing) may implicate certain due process rights. hearing, must demonstrate some harm and EGAL L prejudice in holding the hearing so long 54

THER In Bennett v. Bogan, the defendant had after the issuance of the warrant. Moreover, O been sentenced in federal court to 8 years in the Court acknowledged that the parole prison and 5 years on special parole for a commission, after issuing a parole violator controlled substances offense. However, the warrant, had some obligation to have IABILITIES AND

L defendant was also sentenced to a state the defendant arrested on the warrant.

IVIL prison by a New Jersey court. The defendant Nevertheless, the Court also said that certain C was placed in a New Jersey state prison but mitigating circumstances could preclude a 150 CHAPTER parolee from asserting that his due process been sentenced to prison for 10 to 20 years. rights were violated by failing to arrest him Ten years later, the defendant was released in a timely manner. In this case, since the on parole. One of the conditions of the parolee had failed to report to his parole offi- defendant’s parole was that he refrain from 9 R cer, the Court held that the parolee’s actions “owning or possessing any firearms or other EVOCATION absolved the parole commission from speed- weapon.” In addition, the defendant signed ily executing the parole violator warrant. a consent to allow agents of the Pennsylvania Board of Probation and Parole to conduct ■■■ searches of his person, property, and residence.

Five months into the defendant’s period of V. OTHER SUPREME parole, he was arrested for several alleged COURT DECISIONS violations of the conditions of his release. In addition, parole agents conducted a AFFECTING REVOCA- search of the parolee’s residence, which was TION PROCEEDINGS also the home of his mother. The agents found five firearms, a compound bow, and three arrows as a result of the search of his our other Supreme Court rulings have residence. Although the parolee objected to addressed issues related to probation F the introduction of the seized weapons at revocation. The first is Pennsylvania Board of his revocation hearing, the evidence was Probation and Parole,55 decided in 1998 (ille- nevertheless admitted at the hearing and gally obtained evidence may be admitted in his parole was revoked. revocation proceedings); in 1983, the Court decided Bearden v. Georgia56 (whether an indi- The defendant appealed the admission of this gent’s probation can be revoked for failure to evidence to the Pennsylvania Supreme Court. pay a fine and make restitution); in 1984, the The defendant argued that the evidence was Court handed down a ruling in Minnesota v. seized in violation of his United States con- Murphy57 (involving the admissibility of evi- stitutional rights under the 4th and 14th dence obtained from the probationer without amendments. The Pennsylvania Court agreed the Miranda warnings); and in 1985, the and held that the exclusionary rule applied Court decided Black v. Romano58 (whether to this case. The State appealed this ruling due process requires courts to consider alter- to the United States Supreme Court. natives to probation prior to revocation). These significant cases invite further details. The United States Supreme Court noted that it had applied the exclusionary rule only A. Illegally Obtained Evidence where its deterrence benefits outweighed its May Be Admitted: The Case of “substantial social costs.” Thus using this Pennsylvania Board of Probation analytical premise, the Court examined the and Parole v. Scott deterrence benefits versus the social costs in applying the exclusionary rule to a revocation The most recent United States Supreme proceeding. A majority of the Court stated: Court decision dealing with revocation proceedings addressed the issue concerning [T]he application of the exclusionary whether evidence obtained in violation of a rule would both hinder the function- constitutional provision could nevertheless ing of state parole systems and alter be introduced in a revocation proceeding. In the traditionally flexible, administrative Pennsylvania Board of Probation and Parole v. nature of parole revocation proceedings. Scott,59 the defendant pleaded nolo contendere The rule would provide only minimal to the charge of third-degree murder and had deterrence benefits in this context, 151 because application of the rule in the $100 the next day, and the $550 balance criminal trial context already provides within 4 months. The probationer borrowed significant deterrence of unconstitu- money and paid the first $200, but a month tional searches. later he was laid off from work, and despite repeated effort, was unable to find other work. Therefore, the Court held that the exclusion- Shortly before the $550 balance became due, ary rule did not ban the introduction at a he notified the probation office that his pay- parole revocation hearing of evidence seized ment was going to be late. Thereafter, the in violation of a parolee’s fourth amendment State filed a petition to revoke probation rights. In short, the Court held that the because the probationer had not paid the Constitution does not require the states to balance. The trial court, after a hearing, exclude illegally obtained evidence in revo- revoked probation, entered a conviction, cation hearings. This means that a state can, and sentenced the probationer to prison. at its discretion, admit or exclude illegally The record of the hearing disclosed that obtained evidence in revocation proceedings. the probationer had been unable to find employment and had no assets or income. Although the Supreme Court deemed the deterrent effect of the admissibility of illegal- On appeal, the United States Supreme ly obtained evidence minimal in a revoca- Court held that a sentencing court cannot tion proceeding, there are certain situations properly revoke a defendant’s probation for under which this assumption could be ques- failure to pay a fine and make restitution, tioned. For example, state prosecutors may absent evidence and findings that he was decline to try a parolee in a criminal action somehow responsible for the failure or that if they believe that certain critical evidence alternative forms of punishment were inade- may not be admissible but, instead, forgo quate to meet the State’s interest in punish- prosecuting the parolee for the new offense ment and deterrence. Said the Court: and seek to have the evidence used in a revocation proceeding. Moreover, the Court in Over a quarter-century ago, Justice Scott did not address the question concerning Black declared, “there can be no equal UPERVISORS

S a violation of a parolee’s fifth amendment justice where the kind of trial a man rights, i.e., whether a confession obtained by gets depends on the amount of money force or coercion could still be admissible in he has. . . . There is no doubt that the

FFICERS AND a revocation proceeding. Finally, despite this State has treated the petitioner differ- O holding, certain states may create their own ently from a person who did not fail to

AROLE state exclusionary rules and restrict the admis- pay the imposed fine and therefore did /P sibility of illegally obtained evidence in a not violate probation. To determine parole or probation revocation proceeding. whether this differential treatment vio- ROBATION P lates the Equal Protection clause, one B. Equal Protection and must determine whether and under

SSUES FOR what circumstances, a defendant’s indi- I Revocation: The Case of gent status may be considered in the

EGAL Bearden v. Georgia L decision whether to revoke probation. In Bearden,60 the petitioner pleaded guilty in THER O a Georgia trial court to burglary and theft The Bearden decision is consistent with by receiving stolen property. The court did Williams v. Illinois,61 where the Court said not enter a judgment of guilt; instead, in that a State cannot subject a certain class of

IABILITIES AND accordance with Georgia law, the court sen-

L convicted defendants to a period of impris- tenced the petitioner to probation on condi-

IVIL onment beyond the statutory maximum sole- C tion that he pay a $500 fine and $250 in ly because they are too poor to pay the fine. 152 restitution, with $100 payable that day, In many jurisdictions, however, indigence CHAPTER (or inability to pay) is an affirmative defense role—and serving as agent for law enforce- to a revocation petition for failure to pay ment authorities to ferret out information monetary obligations—hence avoiding a of a crime. If the line is crossed, and perhaps constitutional challenge similar to Bearden. even if it is approached closely, Miranda 9 R

The burden of proving indigence is usually warnings should be given. EVOCATION with the probationer (or parolee). In jurisdictions that do not provide for indigence as a In cases of doubt, the probation/parole offi- bar to revocation, the Bearden case becomes cer might well ask him or herself whether important as a defense to incarceration. It is the circumstances amount to custodial inter- evident from Bearden, however, that a dis- rogation. An affirmative answer will indicate tinction must be made between failures to that the officer is involved in an investiga- pay because of indigence, thus foreclosing tion of some act or circumstance that might revocation, and refusal to pay, where revoca- be construed as being of an independent tion or a possible contempt proceeding is a nature—that is, separate from the supervision valid option for the Court to take. function. Moreover, if the officer formulates the intent to refuse to allow a probationer C. Interrogations and Miranda: or parolee to leave until he or she completes Cases Prior to Minnesota v. any investigative inquiries, then this may Murphy constitute custodial interrogation. When the evidence a defendant seeks to The courts consider whether the suspect was exclude from a criminal trial is his own “deprived of freedom of action in any signif- statement, the outcome is governed by icant way” in determining if questioning is Miranda v. Arizona.62 That case holds that custodial in nature. The defendant need not any statement made during custodial inter- have been in actual custody. The suspect rogation conducted in violation of Miranda need only have held a reasonable belief that rules is inadmissible. Miranda requires that he or she was deprived of freedom in any the following warnings be given: significant way.

■ The suspect has a right to remain silent. It could be argued that a parolee is always in custody; however, the Supreme Court ■ Any statement made may be used against the suspect in court. ruled against this view. In an Oregon case, a parolee was asked by his parole officer to ■ The suspect has a right to the presence meet to discuss a burglary. They met at a of an attorney before and during any police station as a convenient place and the questioning. suspect confessed. The Court held this was ■ If the suspect cannot afford to hire an not a custodial interrogation, as he was in attorney, one will be provided by the state. fact free to leave.63

■ Interrogation will be terminated any time If the parolee is in custody on a new charge, the suspect desires. the officer is required to give the Miranda warnings.64 What actually constitutes custodial The Miranda decision affects only the interrogation is determined on a case-by-case admissibility of evidence at trial. It does not basis, and jurisdictions vary considerably as directly apply to probation or parole revoca- to what is construed as custodial. A Kansas tion, but circumstances frequently arise case held that when a parole officer went where the investigation indicates the occur- with the police to the parolee’s home, took rence of a new offense. When this occurs, the parolee to the parole office, and ques- the officer must be careful not to cross the tioned him there, the interrogation was line between supervision—his or her proper 153 custodial.65 The court suggested that any on probation. The terms of probation questioning by the parole officer related to required him to participate in a treatment a new offense requires Miranda warnings. program for sexual offenders, to report to However, the Oregon case referred to above his probation officer periodically, and to be holds otherwise. truthful with the officer “in all matters.” During the course of a meeting with his pro- Courts have held the following not to be bation officer, who had previously received custodial interrogations, obviating the need information from a treatment counselor that for Miranda warnings: the probationer had admitted to a 1974 rape and murder, Murphy, upon questioning, 1. Where questioning by a parole officer admitted that he had committed the rape occurred during a ride to the parole office and murder. and at the office, but the investigation had not yet become accusatorial. Once After being indicted for first-degree murder, the parole officer has probable cause to Murphy sought to suppress the confession make an arrest, Miranda must be given made to the probation officer on the ground effect.66 that it was obtained in violation of the 5th 2. Where a parolee was confined at a state and 14th amendments. The case went to the hospital and confessed to a crime on his United States Supreme Court. The Court own initiative. The court mentioned as held that the 5th and 14th amendments did significant the facts that the parolee was not prohibit the introduction into evidence not handcuffed and was free to leave the of the probationer’s admissions to the proba- interviewing area, and third parties were tion officer in the subsequent murder prose- present in the interviewing area.67 cution. In general, the obligation to appear before his probation officer and answer ques- 3. In a New York case, although the proba- tions truthfully did not in itself convert an tioner was not free to leave the interview- otherwise voluntary statement into a coming room, Miranda was not applied, as the pelled one. A witness confronted with ques- coerciveness involved did not exceed that tions that the government should reasonably

UPERVISORS inherent in the probation or parole rela- S expect to elicit incriminating evidence ordi- tionship. (Often the client has agreed to narily must assert the fifth amendment privi- answer questions as part of the release lege rather than answer if he desires not to 68

FFICERS AND agreement.)

O incriminate himself. If he chooses to answer rather than assert the privilege, his choice is AROLE

/P D. Interrogations and Miranda: considered to be voluntary since he was free The Effect of Minnesota v. to claim the privilege.

ROBATION Murphy* P A number of questions arise from Murphy. In 1984, the United States Supreme Court For example, if the probationer had objected decided Minnesota v. Murphy 69 (also dis-

SSUES FOR to answering the questions asked by the pro- I cussed in Chapter 8, Supervision), which bation officer, but had been forced to do so, EGAL L gives some answers as to whether or not evi- would the evidence have been admissible? dence obtained by a probation officer may THER The answer appears to be in the negative. O be admissible in evidence in the absence of When is a probationer considered to be in the Miranda warnings. In that case, Murphy custody such that the Miranda warnings pleaded guilty to a sex-related charge and must be given if the evidence is to be used

IABILITIES AND was given a suspended sentence and placed L IVIL C *For a further discussion of Minnesota v. Murphy, see Chapter 7, Conditions, Modifications, and 154 Changes in Status, section II.G, Self-Incrimination. CHAPTER in a criminal trial? The Court does not had violated due process requirements by answer that in Murphy, other than saying revoking probation without considering that “it is clear that respondent was not ‘in alternatives to incarceration. The District custody’ for purposes of receiving Miranda Court agreed and ordered Romano released 9 R protection since there was no formal arrest from custody. The Court of Appeals affirmed EVOCATION or restraint on freedom of movement of the that decision. On appeal, the Supreme Court degree associated with formal arrest.” Does held that the due process clause of the 14th the holding in Murphy extend to parole cases? amendment does not generally require a sen- This was not decided by the Court, but there tencing court to indicate that it has considered are reasons to believe that it should. alternatives to incarceration before revoking probation. The procedures for revocation of The effect of the Murphy decision may be probation, first laid out in Morrissey v. Brewer summarized as shown in table 9–1. and then applied to probation cases in Gagnon v. Scarpelli, do not include an express state- E. Due Process and Probation ment by the fact finder that alternatives to Revocation: The Case of Black v. incarceration were considered and rejected. Romano The Court reiterated that the procedures specified in Morrissey adequately protect the In Black v. Romano,70 the Supreme Court probationer against revocation of probation addressed the issue concerning whether the in a constitutionally unfair manner. United States Constitution requires a judge to consider alternatives to incarceration Addressing specific facts in the case, the before revoking probation. In that case, a Court went on to say that the procedures certain Nicholas Romano pleaded guilty in required by the due process clause were a Missouri state court to several controlled afforded in this case, even though the state substance offenses, was placed on probation, judge did not explain on the record his con- and given suspended prison sentences. Two sideration and rejection of alternatives to months later, he was arrested for and subse- incarceration. The revocation of probation quently charged with leaving the scene of did not violate due process simply because an automobile accident, a felony under the offense of leaving the scene of an acci- Missouri law. After a hearing, the judge dent was unrelated to the offense for which who had sentenced the defendant revoked the defendant was previously convicted or his probation and ordered the execution of because, after the revocation proceeding, the previously imposed sentences. Romano the charges arising from the automobile acci- filed a habeas corpus petition in Federal dent were reduced to the misdemeanor of District Court alleging that the state judge

Table 9–1. The Effect of Murphy on the Use of Miranda Warnings

Should the probation officer give the probationer Miranda warnings when asking questions concerning a criminal offense?* If Used in Revocation If Used in Criminal Proceeding Trial Offender not in custody No No, unless probationer asserts rights Offender in custody Depends upon state law Yes or court decision *This chart is also found in Chapter 8, Supervision. 155 reckless and careless driving. The Romano holds pending investigation of baseless case, therefore, reiterates that Morrissey is charges of parole violations. This court still the yardstick by which revocation due found the decision to arrest directly related process challenges are measured. However, to the decision to revoke parole and, there- the Court has shown an unwillingness to fore, was protected by absolute immunity. expand the meaning of due process beyond that laid out in Morrissey. Jones v. Eagleville Hospital and Rehabilitation Center74 suggests other bases for liability. In ■■■ this case, a suit was brought after a parole revocation for refusal to remove a skullcap with religious significance to the plaintiff. VI. CASES ON Although the court found no liability, that LIABILITY FOR decision appears to be the result of a provision in Section 1983 of 42 U.S. Code that REVOCATION limits a proper defendant to a “person.” The defendant in this case was the parole board n Hall v. Schaeffer,71 a federal district court and not a “person.” Thus, the question of Iruled on a civil rights action brought by a liability under the facts in this case has yet former probationer against a probation offi- to be unequivocally resolved by a court. cer. The court found that the defendant, in filing a petition seeking the arrest of the ■■■ plaintiff, was performing a discretionary function pursuant to her official law enforcement duties as a probation officer. She was, there- VII. EXTRADITION fore, entitled to quasi-judicial immunity. n this mobile society, a parolee or proba- In another case, the United States Fifth Itioner is often wanted by the authorities Circuit Court of Appeals72 examined a civil of one state while he or she is physically pres- rights suit against a probation officer who ent in another state. The process for retriev-

UPERVISORS mistakenly caused the arrest of a plaintiff ing a person from another state is known S probationer due to the erroneous assump- as extradition. The outline of the process tion that a person with the same name as is found in the Constitution, which states:

FFICERS AND the plaintiff was, in fact, the plaintiff. The O court found the officer could be subjected to A person charged in any state with treason, felony, or other crime, who AROLE suit only where his conduct clearly violated /P an established statutory or constitutional shall flee from justice, and be found in right of which a reasonable person would another state, shall on demand of the ROBATION

P have known. The rationale offered for this executive authority of the state from standard was a clear need to vindicate con- which he fled, be delivered up, to be stitutional guarantees without dampening removed to the state having jurisdic- SSUES FOR I the ardor of public officials and the discharge tion of the crime. EGAL

L of their duties. Specifically, the court ruled Questions have arisen over the years con-

THER that the officer was not performing an adju-

O cerning this process. These include the cir- dicatory function and was not entitled to cumstances under which extradition may be judicially derived immunity. refused, the behavior that makes one a fugi-

73 tive from justice, and the authority of federal IABILITIES AND However, in the same year, the United L States Ninth Circuit Court of Appeals heard courts to require extradition. The only issue IVIL C a suit brought by a plaintiff claiming repeat- addressed here, probably the only one in which probation/parole officers are involved, is the 156 ed arrests and consequent nonbail parole CHAPTER adequacy of the papers and documentation to provide courtesy supervision of a proba- on which the extradition demand is based. tioner or parolee convicted in another state. Although a receiving state is not precluded Exactly what documentary evidence must be under the Interstate Compact from accept- 9 R assembled to support a governor’s request to ing courtesy supervision of any probationer EVOCATION extradite a suspected violator varies consider- or parolee, if the probationer or parolee does ably from state to state. Colorado does not not meet the eligibility criteria established require a certificate of judgment, conviction, in the compact, then the state can refuse to and the sentence imposed; a certified record accept courtesy supervision and the offender of the defendant’s plea, suspended sentence, must remain in the state of conviction. and probation is sufficient.75 The same logic might be applied to parole, but it seems If a receiving state becomes dissatisfied with likely that at least a judgment of conviction a probationer or parolee for whom it is pro- would be required. In another Colorado case, viding courtesy supervision, then that state it was held that a judgment of conviction can request that the sending state resume and a statement from the governor that the custody of the offender. Moreover, since an person violated the terms of his probation interstate compact carries the weight of fed- were sufficient.76 New Hampshire allowed eral law, an officer who violates the compact the court to infer a probable probation viola- may incur federal liability.80 Nevertheless, tion, even though it was omitted from the where the probationer or parolee is found extradition papers, because the conditions in a third state and is not supervised there of probation included that the defendant not under the Interstate Compact, then formal leave the state without permission.77 Thus, extradition is required. Finally, probationers probation/parole officers should consult with or parolees often validly waive extradition departmental legal counsel whenever a ques- procedures and permit informal retaking. tion involving the necessary documentation required for successful extradition arises. ■■■

At various times since 1934,78 multistate agreements or compacts have been proposed SUMMARY that contain detailed procedures for moving offenders from one state to another. These his chapter examines legal issues related include the “Agreement on Detainers” and T to revocation, focusing primarily on the “Uniform Rendition of Prisoners as the due process guarantees that the Supreme Witnesses in Criminal Proceedings Act.” Court has established for revocation pro- When these or other compacts apply, they ceedings. The procedural due process rights may simplify the process. Readers should set forth in Morrissey and clarified a year determine from local authorities whether a later in Gagnon remain the law of the land. particular compact is relevant, whether the Morrissey mandates a two-stage process con- rendering and demanding state are parties sisting of a preliminary hearing and a final to the compact, and what procedures must hearing. The preliminary hearing can be dis- be followed. pensed with under certain circumstances. Gagnon states that the due process guaran- A simplified version of extradition is provided tees established in Morrissey for parole revo- by the Interstate Compact, which provides cation proceedings are equally applicable to for the courtesy supervision of parolees and probation revocation proceedings. However, probationers when residing out of state. The Gagnon adds that the right to appointed Interstate Compact applies only to states that counsel in revocation proceedings must be are parties to the agreement.79 It establishes made on a case-by-case basis. the eligibility criteria for one state having 157 Morrissey raised a host of legal issues that The rules on extradition vary considerably were left unaddressed in that case. Among from state to state; hence, probation/parole these are preliminary hearing issues (includ- officers are advised to consult their legal ing location, promptness, form of notice, counsel whenever questions concerning and impartial hearing officer); revocation extradition documentation arise. This chap- hearing issues (including notice of hearing, ter also examines the Interstate Compact for disclosure of evidence, and confrontation Probationers and Parolees and discusses the and cross-examination); and hearsay admissi- provision of courtesy supervision for probability. Other issues related to revocation pro- tioners and parolees convicted in one state ceedings that are discussed in this chapter are but residing in another. standard of proof, nature of proof required, limitations on testimony, and the exclusion- Notes ary rule as applied to probation/parole cases. 1. See www.ojp.usdoj.gov/bjs/pub/press/ppus98.pr. Despite the continuing viability of Morrissey and Gagnon as precedents, the Supreme Court 2. Morrissey v. Brewer, 408 U.S. 471 (1972). has refused to extend greater due process guarantees in revocation proceedings than enun- 3. Gagnon v. Scarpelli, 411 U.S. 778 (1973). ciated in these two cases. 4. Morrissey v. Brewer, 408 U.S. at 480. The application of the Miranda decision is addressed in accordance with the 1984 5. Id. at 482. Supreme Court decision of Minnesota v. Murphy. Whether the Miranda warnings 6. Id. at 485. must be given depends on the nature of the questioning. If it is a custodial interroga- 7. Id. at 488. tion, Miranda does apply if the evidence is to be used in a subsequent criminal trial. 8. Id. at 488-489. Moreover, its admissibility for use in a 9. Gagnon v. Scarpelli, 411 U.S. 778 (1973). subsequent probation or parole revocation UPERVISORS S proceeding is determined by state law or 10. Kartman v. Parratt, 535 F.2d 450 (8th Cir. judicial decisions. Some states require that 1976). Read closely, Gagnon requires counsel at the Miranda warnings must be given for the the preliminary hearing as well as the final hear- FFICERS AND

O evidence to be admissible; others do not. ing in most instances. See, e.g., Van Ermen v. Percy, 489 F. Supp. 791 (E.D. Wis. 1980); AROLE In Black v. Romano, the Court refused to /P Cresci v. Schmidt, 419 F. Supp. 1279 (E.D. Wis. expand the due process guarantees in Morrissey, 1976); Kemp v. Spradlin, 250 Ga. 829, 301 saying that the due process clause does not

ROBATION S.E.2d 874 (1983). P generally require a sentencing court to indicate that it has considered alternatives to 11. McLucas v. Oswald, 40 A.D.2d 311, 339

SSUES FOR incarceration before revoking probation. In I N.Y.S.2d 760 (1973). Bearden v. Georgia, the Supreme Court stated EGAL L that probation cannot be revoked for failure 12. In re La Croix, 32 Cal. App. 3d 319, 108

THER to pay a fine or fees solely on the ground Cal. Rptr. 93 (1973). O that the probationer was indigent and did not have the financial ability to pay the fine 13. State v. Settle, 20 Ariz. App. 283, 512 P.2d or fee. Finally, in Pennsylvania Board of 46 (1973). IABILITIES AND

L Probation and Parole v. Scott, the Supreme

IVIL Court held that the exclusionary rule does 14. Moody v. Daggett, 429 U.S. 78 (1976). C not apply in revocation proceedings. 158 CHAPTER 15. People v. Hardenbrook, 68 Mich. App. 640, 326 N.W.2d 768 (1982); State v. Virgil, 97 N.M. 243 N.W.2d 705 (1976). 749, 643 P.2d 618 (Cr. App. 1982); Jones v. State, 423 So. 2d 513 (Fla. Dist. Ct. App. 1982). 16. Vincent v. State, 586 S.W.2d 880 (Tex. 9 R

Crim. App. 1979), appeal dismissed, 449 U.S. 27. For example, State v. Fraley, 258 S.E.2d 129 EVOCATION 119 (1980). (W. Va. 1979).

17. United States v. Pattman, 535 F.2d 1062 28. People v. Thomas, 42 Colo. App. 441, 599 (8th Cir. 1976). P.2d 957 (1979).

18. See United States v. Havier, ____ F.3d ____ 29. Commonwealth v. Maye, 411 A.2d 783 (9th Cir. 1997) No. 97-10500, decided (Pa. Super. Ct. 1979). September 9, 1998, in which Ninth Circuit Court of Appeals, in interpreting federal rules 30. Reeves v. State, 366 So. 2d 1229 (Fla. Dist. of criminal procedure that incorporated the Ct. App. 1979). Supreme Court’s holding in Morrissey, held that when a revocation petition alleges the commis- 31. State v. Fowler, 37 Or. App. 299, 587 P.2d sion of a new crime and the offense being charged 104 (1978). is not evident from the condition of probation 32. Meyer v. State, 596 P.2d 1270 (Okla. Crim. being violated, then a defendant is entitled to App. 1979). receive notice of the specific statute he is charged with violating. 33. State v. Sussman, 374 So. 2d 1256 (La. 1979).

19. In re Ricks, 31 Cal. App. 3d 1006, 107 Cal. 34. Jones v. Commonwealth, 47 Pa. Commw. Rptr. 786 (1973); People ex rel. Warren v. Ct. 438, 408 A.2d 156 (1979). Mancusi, 40 A.2d 279, 339 N.Y.S.2d 882 (1973); Parker v. Coldwell, 320 Ohio App. 2d 35. Gagnon v. Scarpelli, 411 U.S. 778 (1973). 193, 289 N.E.2d 382 (1972); Ex parte Ates, 487 S.W.2d 353 (Tex. Crim. App. 1972). 36. See Gideon v. Wainwright, 372 U.S. 335 (1963) and Argersinger v. Hamlin, 407 U.S. 25 20. State v. Hass, 264 N.W.2d 464 (N.D. 1978). (1972).

21. State v. Nangesser, 269 N.W.2d 449 (Iowa 37. Williams v. Johnson, ____ 3d ____ (5th Cir. 1978). 1999) No. 97-11116, decided March 29, 1999.

22. Abel v. Wyrick, 574 S.W.2d 411 (Mo. 1978). 38. John v. United States Parole Commission ____ F.3d ____ (9th Cir. 1997) No. 96-16418, 23. V. O’Leary and K. Hanrahan, Parole Systems decided September 10, 1997. in the United States, 57 (3d ed. 1976). 39. Moody v. Daggett, 429 U.S. 78 (1976). See 24. Augello v. Warden, Met. Corr. Ctr., 470 F. also, Roberts v. Champion, ____ F.3d ____, Supp. 1230 (E.D.N.Y. 1979). (10th Cir. 1997) No. 97-5096.

25. Reeves v. State, 366 So. 2d 1229 (Fla. Dist. 40. Ellis et al. v. District of Columbia et al., Ct. App. 1979). ____ F.3d ____ (C.A.D.C., 1996) nos. 95-7090 and 95-7109, decided May 28, 1996. 26. Kaufman v. Henderson, 64 A.D.2d 849, 407 N.Y.S.2d 340 (1978). See, e.g., U.S. v. 41. Dickerson v. State, 136 Ga. App. 885, 222 McCallum, 677 F.2d 1024 (4th Cir. 1982); State S.E.2d 649 (1975). ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 159 42. Cooper v. State, 599 P.2d 419 (Okla. Crim. 59. Pennsylvania Board of Probation and Parole App. 1979). v. Scott, 524 U.S. 357 (1998).

43. People v. Felton, 69 Ill. App. 3d 684, 387 60. Bearden v. Georgia, 461 U.S. 660 (1983). N.E.2d 1094 (1079). 61. Williams v. Illinois, 399 U.S. 235 (1970). 44. State v. Varnado, 384 So. 2d 440 (La. 1980). See also, State v. McGlothin, 427 So. 2d 280 62. Miranda v. Arizona, 384 U.S. 436 (1966). (Fla. Dist. Ct. App. 1983). 63. Oregon v. Matheason, 429 U.S. 492 (1977). 45. Kish v. Florida Parole and Prob. Comm., 369 So. 2d 87 (Dist. Ct. App. 1979). But see, 64. State v. Davis, 67 N.J. 222, 337 A.2d 33 e.g., Strickland v. State, 649 S.W.2d 817 (1975). (Tex. Crim. App. 1983). 65. State v. Lekas, 201 Kan. 579, 442 P.2d 11 46. Herrington v. State, 534 S.W.2d 311 (1968). (Tex. Crim. App. 1976). 66. In re Richard T., 79 Cal. App. 3d 382, 144 47. Meyer v. State, 596 P.2d 1270 (Okla. Crim. Cal. Rptr. 856 (1978). App. 1979). 67. People v. Lipsky, 102 Misc. 2d 19, 423 48. State v. Dement, 42 N.C. App. 254, 255 N.Y.S. 599 (Monroe Co. Ct. 1979). S.E.2d 793 (1979). 68. People v. Ronald W., 24 N.Y.2d 732, 249 49. Gilbert v. State, 150 Ga. App. 339, 258 N.E.2d 882, 302 N.Y.S.2d 260 (1969). S.E.2d 27 (1979). 69. Minnesota v. Murphy, 104 S. Ct. 1136 50. State v. Winters, 40 Or. App. 9, 605 P.2d (1984). 293 (1980). 70. Black v. Romano, 471 U.S. 606 (1985). UPERVISORS

S 51. Harris v. New York, 401 U.S. 222 (1971). 71. Hall v. Schaeffer, 556 F. Supp. 539 (U.S.D. 52. State v. Grimmer, 251 S.E.2d 780 (W. Va. Pa. 1983).

FFICERS AND 1979), overruled on other grounds; State v. Petry,

O 72. Galvan v. Garmon, 710 F.2d 214 (5th Cir. 273 S.E.2d 346 (W. Va. 1980). 1983). AROLE /P 53. People ex rel. Thiel v. Dillon, 70 A.D.2d 73. Anderson v. Boyd, 714 F.2d 906 (9th Cir. 778, 417 N.Y.S.2d 534 (1979).

ROBATION 1983). P 54. Bennett v. Bogan, ___ F.3d ___ (6th Cir. 74. Jones v. Eagleville Hospital and Rehabilitation 1995) No. 94-1931, decided October 5, 1995. SSUES FOR

I Center, 588 F. Supp. 53 (U.S.D. Pa. 1984).

EGAL 55. Pennsylvania Board of Probation and Parole L 75. Miller v. Cronin, 197 Colo. 391, 593 P.2d v. Scott, 524 U.S. 357 (1998).

THER 706 (1979). O 56. Bearden v. Georgia, 461 U.S. 660 (1983). 76. Morgan v. Miller, 197 Colo. 341, 593 P.2d 57. Minnesota v. Murphy, 104 S. Ct. 1136 357 (1979). IABILITIES AND

L (1984). 77. Martel v. Knight, 119 N.H. 190, 400 A.2d IVIL C 58. Black v. Romano, 471 U.S. 606 (1985). 478 (1979). 160 CHAPTER 78. In that year, Congress enacted 4 U.S.C. 80. See Cuyler v. Adams, 101 S. Ct. 703 (1981), Section 112, which provides that the consent of in which the United States Supreme Court stated Congress is hereby given to any two or more that an inmate held pursuant to an interstate states to enter into agreements or compacts for agreement on detainers could make a claim for 9 R cooperative effort and mutual assistance in the relief under 42 U.S.C. Section 1983 for an EVOCATION prevention of crime and in the enforcement of alleged violation by state officials of the terms of their respective criminal laws and policies, and to the detainer agreement. establish such agencies, joint or otherwise, as they may deem desirable for making effective such agreements and compacts.

79. Presently the territory of Guam is the only place in the United States that is not a party to the Interstate Compact on Parolees and Probationers.

161

CHAPTER 10 Liabilities of Supervisors1

INTRODUCTION

I. CATEGORIES OF SUPERVISORY LAWSUITS

II. LIABILITIES OF SUPERVISORS FOR WHAT THEIR SUBORDINATES DO (VICARIOUS LIABILITY)

A. Negligent Failure to Train B. Negligent Hiring C. Negligent Assignment D. Negligent Failure to Supervise E. Negligent Failure to Direct F. Negligent Entrustment G. Negligent Failure to Discipline

III. LIABILITIES OF SUPERVISORS FOR WHAT THEY DO TO THEIR SUBORDINATES (DIRECT LIABILITY)

A. Rights of the Employees Given by the Constitution B. Rights of Employees Given by Federal Law 1. The Equal Pay Act of 1963 2. The Age Discrimination in Employment Act 3. The Rehabilitation Act of 1973 4. The Americans With Disabilities Act of 1990 HPE 10 CHAPTER 5. The Civil Rights Act of 1991 6. The Family and Medical Leave Act of 1993 7. The Pregnancy Discrimination Act 8. The Veterans Era Readjustment Act 9. The Civil Rights Act of 1964

C. Rights of Employees Given by State Laws D. Rights of Employees Given by Agency Policies E. Rights of Employees Given by Collective Bargaining Agreement

IV. AGENCY REPRESENTATION AND LIABILITY FOR ACTS OF SUPERVISORS

SUMMARY

NOTES CHAPTER INTRODUCTION case, the plaintiff alleged that although the director of the police department had no n simplest terms, a supervisor is a person actual notice of the police officer’s violent behavior, because of administrative policies, 10 who has somebody working for or with I L him or her in a subordinate capacity. At the the director should have known. The Court OF IABILITIES apex of the supervisory hierarchy are the said that although the director could be administrators who have ultimate responsi- shielded with qualified immunity, the city bility for the operation and management of could be held liable. Speaking in dissent, S an agency. The term “supervisor” is used in Justice Rehnquist opined that the Court’s UPERVISORS this discussion generally to include proba- opinion supports the preposition that in tion/parole administrators, chiefs, heads, suing a public official under Section 1983 or directors. of 42 U.S. Code, a money judgment against the public official “in his or her official Although lawsuits against officers are directed capacity” is collectible against the public that mainly at field personnel, including proba- employs the official. In Retenauer v. Flaherty,3 tion or parole officers, plaintiffs are inclined a 1994 decision, Pennsylvania Judge James to include supervisory officials and the agency R. Kelley quotes from the Brandon case to as parties-defendants, based on the theory that clarify the issue: the officer acts for the agency and, therefore, what the officer does reflects agency policy [T]he issue before the court was whether and practice. As a matter of legal strategy, it the judgment was payable by the City benefits plaintiffs to include supervisors and of Memphis or whether the Police agencies in a liability lawsuit. Lower level offi- Director was individually liable. The cers may not have the financial resources to court held that the City of Memphis satisfy a judgment, nor are they in a position was responsible for the judgment, but to prevent similar future violations by other cautioned: officers or the agency. Moreover, chances of In at least three recent cases arising financial recovery are enhanced if supervisory under § 1983, we have plainly personnel, by virtue of their position, are implied that a judgment against a included in the lawsuit. The higher the posi- public servant “in his or her official tion of the employee, the closer the plaintiff capacity” imposes liability on the gets to the deep pocket of the county or state entity that he represents provided, agency. Inclusion of the supervisor and agency of course, the public entity received may also create disagreement in the legal notice and an opportunity to strategy of the defense, based on a conflict respond. We now make that point of interest, hence strengthening the plaintiff’s explicit. claim against one or some of the defendants. In Retenauer, the city of Pittsburgh In Brandon v. Holt,2 a 1985 decision, the was not named as a party, notified United States Supreme Court ruled that a of involvement, nor given the money judgment against a public officer “in opportunity to participate in settle- his or her official capacity” imposes liability ment negotiations with the plaintiff. upon the public entity that employs him or Therefore, it was exonerated from her, regardless of whether or not the agency all liability in the case. was named as a defendant in the suit. In this

165 I. CATEGORIES Liability as a private individual arises when the supervisor acts on his or her own and OF SUPERVISORY outside the scope of duty. In these cases, the LAWSUITS agency will not undertake his or her defense or pay for damages if held liable. The initial determination whether that officer acted awsuits may be categorized in various within the scope of duty is made by the ways, each with varying implications. L agency. Unless provided otherwise by statute First, they may be brought under state or or agency regulation, such determination federal laws, or under both. Most cases are is not appealable to any court or higher in fact brought under tort law (state courts) administrative agency. Most lawsuits, how- and Section 1983 of 42 U.S. Code (Federal ever, are brought against a supervisor in his courts). Both are civil cases and enjoy advan- or her official capacity, regardless of the tages in terms of a lower quantum of proof nature of the act. Plaintiffs prefer to hold needed to win (compared with criminal cases) both the officer and the agency liable so as and probable financial benefit in the form to broaden the financial base for recovery. of damages awarded. Section 1983 cases have the added advantage of the plaintiff being ■■■ able to recover attorney’s fees from the defendant, by judicial order, if he or she prevails in any of the allegations, or even if the case II. LIABILITIES results in a consent decree. OF SUPERVISORS Second, liability lawsuits may be classified as FOR WHAT THEIR coming from two possible sources (i.e., from clients, such as probationers, parolees, or the SUBORDINATES general public, and from subordinates or DO (VICARIOUS employees). In either case, the usual allegation is that the supervisor is liable for injury LIABILITY)

UPERVISORS caused by action or inaction. While most S cases filed thus far stem from clients’ liability icarious or indirect liability stemming claims, an increasing number of cases have Vfrom negligence of a supervisor is one of arisen from subordinates for acts done or

FFICERS AND the most frequently litigated areas of liability O injuries suffered in the course of employ- and, therefore, merits extended discussion. ment that could have been obviated had the AROLE Most decided cases in the area of supervisor /P supervisor performed his or her job properly. liability are police or prison cases, but their principles should be applied to probation

ROBATION Third, supervisory liability cases may be clas- P and parole supervisors as well. It must be sified into direct liability and vicarious liabil- noted that most decided cases require “delib- ity. Direct liability means that a supervisor is erate indifference” (a higher level of blame) SSUES FOR I held liable for what he or she does, whereas for a supervisor to be liable. Simple negli-

EGAL vicarious liability holds a supervisor liable L gence will not establish liability. for what his or her subordinates do. This is THER O based on the theory that the officer acts for A. Negligent Failure to Train the agency and, therefore, what he or she does is reflective of agency policy and practice.4 This has generated a spate of lawsuits in the law enforcement and corrections areas of IABILITIES AND L Fourth, liability lawsuits may be filed against criminal justice. As early as 1955, a state court IVIL

C the supervisor as a private individual or in entertained tort actions for monetary dam- his or her capacity as a public officer. ages resulting from improper or negligent 166 CHAPTER training.5 The usual allegation in these cases under lawsuit in two instances of wrongful is that the employee has not been instructed death. Similarly, in Rock v. McCoy,9 a 1985 or trained by the supervisor or agency to a decision, when Mr. Rock approached a point at which he or she possesses sufficient police officer to inquire whether the officer 10 L skills, knowledge, or activities required of wanted to speak with him, a brawl quickly OF IABILITIES him in the job. The rule is that administra- turned into a severe beating by law enforce- tive agencies and supervisors have a duty to ment. Although the city had no policy or train employees and that failure to discharge custom of beating citizens or suspects, the S this obligation subjects the supervisor and city was held liable because adequate train- UPERVISORS the agency to liability if it can be proven ing would have eliminated the grossly negli- that such violation was the result of failure gent officers’ actions. to train or improper training.6 The question arises: Will a single act by Although no cases decided thus far involve a subordinate suffice to establish liability probation and parole, some cases have man- under failure to train? Most cases hold that dated jail and prison administrators to train a pattern must be proven and established. their staffs or improve their training programs. The Owens case indicates a single brutal inci- In Owens v. Haas,7 the plaintiff argued that dent may be sufficient to constitute a link lack of training for personnel in the local jail between failure to train and violation. Owens resulted in the violation of his or her consti- considered solely the degree of violation to tutional rights stemming from the use of determine liability instead of waiting for a force against him. The Second Circuit held pattern to develop based on a series of viola- that while a county may not be liable for tions. The United States Supreme Court has mere failure to train employees, it could be answered this question in the negative. In liable if its failure was so severe as to reach 1985, the Court ruled that an isolated act the level of gross negligence or deliberate of police misconduct could not ordinarily indifference. The court added that a munici- make a city subject to a damage suit for vio- pality is fairly considered to have actual or lating an individual’s civil rights.10 This deci- imputed knowledge of the foreseeable con- sion was reiterated in 1997 when the Court, sequences that could arise from nonexistent in Board of County Commissioners of Bryan or grossly inadequate training. County, Oklahoma v. Brown, held that a single hiring decision made by a county official In McClelland v. Facteau,8 the Tenth Circuit was not enough to hold the county liable.11 held that a police chief might be held liable In another case, Oklahoma City v. Tuttle, the for civil rights violations for failure to train Court overturned a $1.5 million damage or supervise employees who commit an award against Oklahoma City, won by the unconstitutional act. The plaintiff was widow of a man whom an Oklahoma City booked by the New Mexico State Police at a officer had shot to death in the process of local jail facility, and while there beaten by investigating a reported robbery. The plain- the officers as well as denied use of the tele- tiff in this case argued that the city’s inade- phone and access to an attorney. In holding quate training of its police force constituted the officers liable, the court said that in an official “policy” for which the city should order for liability to attach, there must be a be held liable. The Court of Appeals for the breach of an affirmative duty owed to the Tenth Circuit accepted the plaintiff’s theory plaintiff, and the action must be the proxi- and ruled that the officer’s action was so mate cause of the injury. In this case, it was plainly and grossly negligent as to provide well known that instances of constitutional the necessary link between the policy and violations were occurring in the department the injury. The United States Supreme because they had been thoroughly aired by Court reversed that decision. Writing for the press. Additionally, the jail itself was four of the seven justices in the majority, 167 Justice Rehnquist said that the notion of available, unstructured training alone may not inadequate training as a policy was too neb- be sufficient. The nature, scope, and quality ulous and remote from the charge of uncon- of the training program must be properly stitutional deprivation of life as to form a documented and its relevance to job perform- basis for municipal liability. He added that a ance identified. There is a need to document single incident could give rise to municipal training sessions with detailed outlines to liability only if the incident was actually substantiate course content. Attendance caused by an existing, unconstitutional sheets are necessary for defense purposes in municipal policy, which can be attributed to lawsuits brought by one’s own subordinates. a policymaker. But where the policy relied upon is not itself unconstitutional, consider- B. Negligent Hiring ably more proof than a single incident will Negligent hiring stresses the importance be necessary in every case to establish both of proper background investigation before the requisite fault on the part of the munici- employing anyone to perform a job. pality and the causal connection between the Liability ensues when an employee is unfit policy and the constitutional deprivation. for appointment, when this unfitness was In City of Canton v. Harris,12 decided in 1989, known to the employer or when the employ- the Court held “deliberate indifference” was er should have known about it through the the standard to be used on the issue of munic- background investigation, and when the act 15 16 ipal liability for inadequate training. In 1998,13 is foreseeable. In one case, the department the United States Court of Appeals for the hired a police officer despite a record of pre- Sixth Circuit held that to be held liable for employment assault conviction, a negative supervisor liability, the administrator must recommendation from a previous employer, display deliberate indifference in his or her and a falsified police application. The officer inaction toward the situation. later assaulted a number of individuals in separate incidents. He and the supervisor Lawsuits against supervisors and agencies for were sued and held liable. In another case,17 failure to train come from two sources (i.e., a the court held a city liable for the actions

UPERVISORS of a police officer who was hired despite a S client whose rights have been violated by an officer who has not been properly trained, felony record and who appeared to have been and a subordinate who suffers injury in the involved in many street brawls. Liability was

FFICERS AND course of duty because he or she was not based on the complete failure of the agency O trained adequately). The obvious defense in to conduct a background check before hiring

AROLE these cases is proper training, but training the applicant. /P may in fact be deficient due to circumstances beyond a supervisor’s control, such as lack In a 1997 case, Board of County Commissioners

ROBATION 18 P of funds and a dearth of expertise. of Bryan County, Oklahoma v. Brown, the United States Supreme Court held that a Will the supervisor be liable if no resources county cannot be held liable under Section SSUES FOR I have been allocated to provide the desired 1983 for a single hiring decision made by a EGAL

L level of training? Budgetary constraints county official. In Brown, the plaintiff and her husband approached a police checkpoint

THER generally have not been considered a valid O defense14 by the courts and, therefore, place and then turned around to avoid it. Two the supervisor in a difficult position. With deputies pursued the vehicle for more than proper documentation, however, the super- 4 miles at speeds in excess of 100 miles an

IABILITIES AND hour. When the vehicle stopped, one of the

L visor should be able to establish good faith deputies pointed his gun at the truck and

IVIL if he or she repeatedly calls the attention of C those who hold the purse strings to the need ordered the occupants to raise their hands. 168 for training. Even if financial resources are The other deputy went to the passenger side CHAPTER of the truck and ordered Brown out of the It is important to note, however, that the vehicle. When Brown did not respond after Brown case is a Section 1983 (federal) case. the second request, the deputy pulled her State courts may set a lower standard for lia- from the truck by the arm and swung her to bility in state tort cases for negligent hiring. 10 L the ground. The fall caused severe injuries OF IABILITIES to Brown’s knees, possibly requiring knee C. Negligent Assignment replacement. Brown sued the deputy, the Negligent assignment means assigning an county sheriff, and the county for injuries

employee to a job without ascertaining S under Section 1983, claiming that the sheriff UPERVISORS whether or not he is adequately prepared for failed to adequately review the deputy’s back- it, or keeping an employee on the job after ground. The deputy did in fact have a history he or she is known to be unfit. Examples of misdemeanor offenses, including assault would be a reckless driver assigned to drive a and battery, resisting arrest, driving while government motor vehicle or leaving an offi- intoxicated, and public drunkenness prior cer who has had a history of child molesta- to his hiring. The sheriff knew this and yet tion in a juvenile detention center. The rule hired him. After some legal maneuvering, the is that a supervisor has an affirmative duty sole issue presented to the Court was: Can a not to assign or leave a subordinate in a posi- county be held liable in a Section 1983 case tion for which he or she is unfit. In Moon v. involving excessive use of force for a single Winfield,19 liability was imposed on the police hiring decision made by a county official? superintendent for failure to suspend or trans- The Court said no, saying that county liabil- fer an errant officer to a nonsensitive assign- ity for a sheriff’s decision to hire does not ment after numerous disciplinary reports “depend on the mere probability that any had been brought to the supervisor’s atten- officer inadequately screened will inflict any tion. The court held that supervisory liability constitutional injury. Rather, it must depend ensued because the supervisor had authority on a finding that this officer was highly likely to assign or suspend the officer but failed to 20 to inflict the particular injury suffered by the do so. Similarly, in a recent case dealing plaintiff.” This is a higher standard for liabil- with the probation of Jeffrey Dahmer, the ity for negligent hiring than the “deliberate victim’s family sued the state of Wisconsin, indifference” standard set in negligent failure Dahmer’s probation officer, and others alleg- to train cases. ing gross negligence and mismanagement. Their main allegation was that the new pro- This is the only case decided by the United bation officer, Donna Chester, was reckless States Supreme Court thus far on negligent in accepting 121 probation cases of offend- hiring. Although the case involves law ers who were evaluated as high risk and not enforcement, there are good reasons to fully following procedure and making requi- assume it applies to probation and parole as site home contacts. Chester, however, had well. Moreover, although the case involves followed agency procedure and submitted county liability rather than liability of a waivers to her supervisor for those home supervisor for negligent hiring, there is no contacts; therefore, the court found no reason to believe it will not apply to supervi- recklessness or negligence on her part. The sors if that issue ever comes up before the court further held the state and Chester Court. In sum, in the absence of statute it were immune from liability in their official may be assumed that the high standard set capacity under the doctrine of sovereign by the Court in Brown for county liability is immunity in Wisconsin. the same standard that will be set for liabilities of supervisor negligent hiring. Supervisors must pay careful attention to complaints and adverse reports against subordinates. These must be investigated, and 169 the investigation must be properly docu- of serious bodily injury to innocent parties mented. This also implies that the supervisor at the scene of the crime. In failing to pro- must generally be aware of the weaknesses vide supervision, Weaver breached a duty he and competencies of subordinates and not owed the plaintiff and other parties present; assign them to perform tasks in which they hence, he was obliged to repair it. are wanting in skill or competence. The current law on liability for negligent D. Negligent Failure to Supervise failure to supervise is best summarized in an article as follows:25 Failure to supervise means negligent abdica- tion of the responsibility to oversee employ- To be liable for a pattern of constitu- ee activity properly. Examples are tolerating tional violations, the supervisor must a pattern of physical abuse of inmates, racial have known of the pattern and failed discrimination, and pervasive deprivation of to correct or end it. . . . Courts hold inmate rights and privileges. One court has that a supervisor must be “causally gone so far as to say that failure on the part linked” to the pattern by showing that of the supervisor to establish adequate policy he had knowledge of it and that his or gives rise to legal action.21 Tolerating unlaw- her failure to act amounted to approval ful activities in an agency might constitute and hence tacit encouragement that deliberate indifference to which liability the pattern continue. attaches. The usual test is: Does the supervisor know of a pattern of behavior, but has A writer gives this succinct advice: “The he or she failed to act on it?22 A related ques- importance of this principle is that supervi- tion is: What constitutes knowledge of a sors cannot shut their eyes and avoid respon- pattern of behavior? Some courts hold that sibility for the acts of their associates if they actual knowledge is required, which may be are in a position to take remedial action and difficult for a plaintiff to prove, while others do nothing.”26 have ruled that knowledge can be inferred if a history of violation is established and the E. Negligent Failure to Direct

UPERVISORS official had direct and close supervisory con- S Failure to direct means not sufficiently trol over the subordinates who committed telling the employee of the specific require- the violations. ments and proper limits of the job to be FFICERS AND O In Thomas v. Johnson,23 the police chief performed. Examples are failure on the part of the supervisor to inform an employee in a

AROLE allegedly failed to supervise an officer against /P whom numerous complaints had been filed, prison mailroom of the proper limits of mail resulting in an assault, battery, negligence, censorship or to advise prison guards as to

ROBATION the extent of preserved, rights of access to

P and violation of the plaintiff’s civil rights. In 27 both cases, the courts noted possible liability court and counsel. In one case, the court for negligent failure to supervise. In London refused to dismiss an action for illegal entry, SSUES FOR I v. Ryan,24 one Lt. Weaver was the senior offi- stating that it could be the duty of a police

EGAL chief to issue written directives specifying

L cer at the scene of a crime that resulted in two young officers firing their weapons and the conditions under which field officers can THER

O injuring an innocent person. Although he make warrantless entries into residential arrived in his patrol car at the same time as places. The court held that the supervisor’s the two responding officers, Lt. Weaver failure to establish policies and guidelines concerning the procurement of search war-

IABILITIES AND failed to exit his vehicle and take command. L The Louisiana court said that Lt. Weaver’s rants and the execution of various depart- IVIL C failure to provide proper supervision in a sit- mental operations made him vicariously liable for the accidental shooting death of 170 uation involving firearms created a grave risk a young girl by a police officer. In another CHAPTER case,28 the failure to direct involved the chief’s that supervisors have a duty to supervise negligence in establishing procedures for the errant off-duty officers where an officer had jail concerning diabetic diagnosis and treat- property, gun, or nightstick belonging to a ment. The case involved incarceration for government agency. 10 L public drunkenness. The arrestee experienced OF IABILITIES a diabetic reaction that resulted in a diabetic G. Negligent Failure to Discipline coma, stroke, and brain damage. The jailer Negligent failure to discipline means the did not recognize this condition and, there-

failure to take action against an employee in S fore, failed to provide for the proper medical UPERVISORS the form of suspension, transfer, or termina- care, resulting in death. Liability was assessed. tions, when such employee has demonstrat- The best defense against negligent failure to ed unsuitability for the job to a dangerous direct is a written manual of policies and degree. The test is: Was the employee unfit procedures for departmental operations. The to be retained and did the supervisor know 31 manual must be accurate and legally updated, or should he have known of the unfitness? and it must form the basis for agency opera- The rule is that a supervisor has an affirma- tions in theory and practice. It must cover tive duty to take all necessary and proper all the necessary and important aspects of steps to discipline and/or terminate a subor- the job an employee is to undertake. It is dinate who is obviously unfit for service. also necessary that employees be required to This can be determined either from acts of read and to be familiar with the manual as prior gross misconduct or from a series of part of their orientation to the agency. A prior acts of lesser misconduct indicating signed statement by the employee to the a pattern of unfitness. Such knowledge effect that he or she has read and under- may be actual or presumed. In Brancon v. stood the manual will go a long way toward Chapman,32 the court held a police director exculpating a supervisor from liability based liable in damages to a couple who had been on failure to direct. assaulted by a police officer. The judge said that the officer’s reputation for using exces- F. Negligent Entrustment sive force and for having mental problems Negligent entrustment refers to the failure of was well known among the police officers a supervisor to supervise or control properly in his precinct; hence, the director ought an employee’s custody, use, or supervision of to have known of the officer’s dangerous equipment or facilities entrusted to him on propensities and to have fired him before the job. Examples are improper use of vehi- he assaulted the plaintiffs. This unjustified cles and firearms that result in death or seri- inaction was held to be the cause of the ous injury. In Roberts v. Williams,29 a farm injuries to the couple for which they could superintendent gave an untrained trustee be compensable. In McCrink v. City of guard a shotgun and the task of guarding a New York,33 a police commissioner who per- work crew. The shotgun discharged acciden- sonally interviewed an errant officer, and yet tally, seriously wounding an inmate. The retained him after a third offense of intoxi- court held the warden liable based on negli- cation while on duty, was deemed to have gence in permitting an untrained person to actual knowledge. Presumed knowledge aris- use a dangerous weapon. In McAndrews v. es where the supervisor should have known Mularchuck,30 a periodically employed reserve or, by exercising reasonable diligence, could patrolman was entrusted with a fireman have known the unfitness of the officer. without adequate training. He fired a warn- No supervisory liability arises where the ing shot that killed a boisterous youth who prior acts of misconduct were minor or was not armed. The city was held liable in a unforeseeable, based on the prior conduct wrongful death suit. Courts have also held of the officer. 171 The defense against negligent retention Direct liability of supervisors under state law is for the supervisor to prove that proper for acts affecting subordinates arises from action was taken against the employee and varied sources and in a number of ways. that the supervisor did all he or she could to Responsibilities attach in the hiring, termi- prevent the damage or injury. This suggests nation, demotion, suspension, or reassign- that a supervisor must know what is going ment phases of a supervisor’s work. There on in the department and must be careful to are usually two issues involved in supervisor- investigate complaints and document those subordinate cases. The first has to do with investigations. the causes for which an employee may be terminated, demoted, suspended, or reas- In summary, supervisory liability under state signed. The second looks at the procedure law arises under a variety of circumstances, that must be followed, if any, before an all based on negligence. While most courts employee may be terminated, demoted, sus- impose supervisory liability only when the pended, or reassigned. Both cause and pro- negligence amounts to deliberate indiffer- cedure for supervisory action are primarily ence, other courts go with a lower standard. governed by laws on: Regardless of the standard used, the determination of negligence is made by the trier of ■ Rights of employees given by the fact, be it a judge or jury, and so the distinc- Constitution; tion may not be all that significant. The ■ Rights of the employee given by federal seven possible sources of liability discussed laws; above are not mutually exclusive and do in fact overlap. For example, negligent failure ■ Rights of the employee given by state to direct or assign may also mean failure to laws; supervise, and vice versa. The plaintiff’s ■ Rights of the employee given by agency complaint may, therefore, cover more than policy; one area of potential liability even if allegations are anchored on a single act. ■ Rights of the employee given by collective bargaining agreements. UPERVISORS

S ■■■ These sources of rights are not mutually exclusive and, in fact, interface in many cases. For

FFICERS AND III. LIABILITIES OF example, prevailing state laws may supplement O SUPERVISORS an employee contract; moreover, basic consti-

AROLE tutional rights overlay individual contracts or /P FOR WHAT THEY agency regulations. Unconstitutional provisions in contracts or agency guidelines may

ROBATION DO TO THEIR P be challenged in court. The waiver of a basic SUBORDINATES constitutional right as a condition for employ-

SSUES FOR ment has found increasing disapproval in pub- I (DIRECT LIABILITY) lic employment litigation.34 EGAL L n contrast to vicarious liability (liability THER A. Rights of Employees Given by O Iof supervisors for what their subordinates do, where cases are filed by probationers or the Constitution parolees), direct liability is filed by employ- Constitutional rights usually invoked by employees are: IABILITIES AND ees against supervisors allegedly because L employees’ rights have been violated by IVIL ■ C the supervisor. First Amendment Freedom of Religion, Speech, the Press, Assembly, and Petition 172 CHAPTER the Government. Example: An employee an employee acquires property rights to is terminated or disciplined for exercising his or her job upon passing the probation- constitutional rights, such as suing his or ary status, the length of which is governed her superior or department, criticizing the by state law. When the termination takes 10 L

department, exercising freedom of religion, away an employee’s liberty (such as (a) OF IABILITIES or choosing an unconventional lifestyle. when it seriously damages an employee’s As a general rule, an employee may be dis- standing and association in the communi- ciplined if the supervisor is able to prove ty, or (b) when the action imposes a stig- S

that what the employee did impairs his ma or other disability), that limits an UPERVISORS or her efficiency in the department,35 or employee’s chances for other employment. demonstrably affects job performance.36 The employee is entitled to rights under For example, criticisms, which ordinarily the 14th amendment. fall under the exercise of free speech, must The general rule concerning homosexual have an adverse effect, or affect the effi- activities appears to be that sufficient nexus ciency of the department, before adverse must exist between homosexuality and job action against the employee can be taken. performance to justify dismissal.39 In one In Pickering v. Board of Education,37 the case, the court held that a homosexual junior United States Supreme Court said that the high school teacher could not be dismissed right to speak cannot be curtailed absent or transferred simply because he was a homo- proof of false statements knowingly and sexual. Some showing must be made of his recklessly made, or a statement that dis- or her homosexual behavior with students rupts the harmony of the department. or teachers, or that his or her homosexuality, ■ Fourth Amendment Right Against in general, was notorious.40 In another case,41 Unreasonable Searches and Seizures. the court held that civil servants could not Example: An employee’s desk is searched be discharged for homosexuality unless their without permission. The general rule is homosexuality was rationally related to job that supervisors may validly conduct a performance. search without a warrant or probable cause if the officer has no reasonable In other sexual activity cases, the general rule expectation of privacy.38 is that an employee’s private sexual conduct is within the zone of privacy and is, therefore, ■ Fifth Amendment Right Against Self- shielded from government intrusion. Most Incrimination. Example: An employee is disciplinary actions by supervisors have not dismissed for refusing to answer questions been sustained because these are areas of an in connection with an investigation. The employee’s life over which the government general rule is that an employee has no right has no legitimate interest. An exception is against self-incrimination in an adminis- where the sexual activities of an employee trative investigation. Consent searches are are open and notorious, or if such activities valid; hence, he or she must answer care- take place in a small town where impact on fully crafted questions but will retain such the department may be easily demonstrable. rights in a criminal investigation. Whatever In these cases, the supervisor might very well is obtained in the administrative investiga- have an interest in investigating such activi- tion cannot be used against the employee ties and terminating the employee.42 in a subsequent criminal proceeding.

■ 14th Amendment Right to Equal Mere membership in a political party cannot Protection, Due Process, Property be prohibited or used as a basis for discipli- Interests, and Liberty Interests. Example: nary action, but participation in partisan poli- An employee is dismissed from the job tics can be prohibited because of possible conflict of interest and potential abuse of without a hearing. The general rule is that 173 the prerogatives of one’s office.43 In Giglio v. be weighted along with all other factors Court of Pennsylvania,44 the court found such that precipitated the firing.49 Once the a prohibition to have important state inter- defendant has established a prima facie ests. The employee retains the options of case of discrimination, direct evidence of resigning his or her employment or request- the plaintiff’s bias is not necessary for the ing an exemption from the Pennsylvania case to go to the jury. In other words, court. Similarly in Georgia,45 holding a indirect evidence will suffice to take the political office and being a state employee defendant’s claims to jury deliberation. were held to be a conflict of interest for 3. The Rehabilitation Act of 1973. The which the state had a compelling interest Rehabilitation Act of 1973, the precursor in imposing restrictions about holding both to the ADA, applies to Federal agencies at the same time. receiving federal funding. Under its aus- pices, discrimination based on disability is The general rule stated above can be super- prohibited, including rehabilitation, pub- seded, however, by federal or state law, agency lic building access, and employment.50 policy, civil service rules, or collective bargaining agreements. Because of this, specific 4. The Americans With Disabilities Act of employee rights vary from one jurisdiction 1990. In an attempt to further the bene- to another. ficial effects of the Rehabilitation Act of 1973, the Legislature passed the Americans B. Rights of Employees Given by With Disabilities Act of 1990. Under this Federal Law 46 act, discrimination based on disability was further prohibited as long as the individ- Several statutes govern direct liability of ual had the requisite skills for the job in supervisors to subordinates under federal question. Admittance could not be denied law. Most notable are the following: to governmental programs, services, or activities, and public accommodations.51 1. The Equal Pay Act of 1963. The Equal Pay Act protects women and men against 5. The Civil Rights Act of 1991. This act pay discrimination based on sex, if they deals mainly with technical court rules UPERVISORS S are performing substantially equal work dealing with discrimination cases and in the same establishment. The law does opened the issue of damages awarded to not apply to pay differences based on include emotional suffering and punitive FFICERS AND

O factors other than sex, such as seniority, damages.52 merit, or a system that rewards worker AROLE 6. The Family and Medical Leave Act of /P productivity.47 1993. This act, applying to employers 2. The Age Discrimination in Employment with 50 or more employees, provides ROBATION P Act. The Age Discrimination in Employ- leave, which is unpaid, for 12 weeks to ment Act protects workers aged 40 to 70 any employee who qualifies, such as

SSUES FOR from age discrimination in hiring, dis- for childbirth/adoption/foster care or I charge, pay, promotions, fringe benefits, parental/spousal/child medical care.53 EGAL L and other aspects of employment. It 7. The Pregnancy Discrimination Act. In

THER applies to all federal, state, and local gov-

O 1978, the Legislature amended Title VII ernments. The law does not apply if an and added the Pregnancy Discrimination age requirement or limit is a bona fide Act. Under the Pregnancy Discrimination job qualification, is a part of a bona fide Act, employers are required to treat both IABILITIES AND

L seniority system, or is based on reasonable hiring and leave decisions dealing with 48 IVIL factors other than age. A June 2000 case C pregnancy, childbirth, and all related held that the discrimination claim must 174 CHAPTER matters as though it were a temporary d. Use of language. disability. The only exception is the e. Holding up to ridicule. allowance of refusal to hire because the woman cannot complete the probationary f. Leaving sexually explicit books, 10 L

employment period because of a pregnancy- magazines, etc., in places where female OF IABILITIES related issue. Paid maternity leave is not employees can find them. required; however, if the agency has a g. Notes, either signed or anonymous, temporary disability pay policy, it must placed on bulletin boards, in lockers, S be followed in this situation. Promotion, in desks, etc. UPERVISORS forced leave, and firing are also dealt with, as none may be done based solely on sta- h. The required wearing of particular tus as pregnant or dealing with pregnancy- types of clothing. related issues.54 i. Transfer, demotion, dismissal, etc., 8. The Veterans Era Readjustment Act. This after refusing or resisting sexual advances. act deals with the allocation of governmen- j. Requesting and/or ordering employees tal contracts. The Veterans Era Readjus- of one sex to perform tasks traditionally tment Act states that federal agencies viewed as “women’s work,” such as making should seek to hire disabled and nondis- coffee, going out to get lunch, or doing abled veterans for contracts of and over personal shopping for male supervisors. the amount of $10,000.55 k. Demeaning comments or actions. 9. The Civil Rights Act of 1964. One of the l. Unwanted, unwarranted, and unsolicited most significant civil rights legislation “off duty” telephone calls, contacts, etc. passed by the Congress of the United States in the last four decades, the Civil Rights Act of 1964 prohibits discrimina- The above is an illustrative, not exhaustive, tion in employment on the basis of race, list of harassing activities. Not all sexually sex, religion, color, or national origin. oriented acts constitute sexual harassment. Under this law, employment discrimina- There are levels of sexual harassment that tion is prohibited in such areas as recruit- vary in severity and consequence. For exam- ment, testing, hiring or firing, transfer, ple, telling an “off color” joke is not as seri- promotion, layoff, and training.56 It is also ous as sexual assault. The general rule is that the basis for rules and regulations pro- less serious types of sexual harassment do hibiting sexual harassment of employees. not automatically lead to liability, whereas more serious acts do. Sexual harassment is defined as unwelcome verbal, nonverbal, or physical con- Sexual harassment can take place in two ways, duct of a sexual nature or based on sex. It vertical or horizontal: (1) harassment of sub- is a form of discrimination based on sex; ordinates by supervisors, and (2) harassment hence, it is prohibited by the Civil Rights of employees by coemployees who are not Act of 1964. their superiors. The general rule is that harass- Activities that may constitute sexual ment of subordinates by supervisors (vertical) harassment include the following:57 leads to agency liability, while harassment of employees by coemployees (horizontal) leads a. Touching. to supervisory liability only if the supervisor b. “Off color” jokes. knew or should have known about it and could have stopped it but did not. c. Unwanted, unwelcome, and unsolicited propositions.

175 Must there be reprisal or revenge by the law can then be enforced both by the federal supervisor before harassment becomes government and the states. The federal gov- unlawful? What if the supervisor proposi- ernment may choose to leave enforcement to tions a subordinate but does not take any the state—based on a financial incentive. In adverse action whatsoever when rebuffed? addition to re-enacting federal laws, states The answer is that sexual harassment, may also pass laws of their own giving rights whether physical or verbal, may be unlawful and remedies to employees. An example is even if there is no immediate employment whistleblower statutes that proscribe dis- reprisal. Under a 1980 Equal Employment missal of the employee who exposes malfea- Opportunity Commission regulation, sexual sance in an agency. Some states have civil harassment is present if the unwelcome sex- service laws giving employees rights that ual advance has the purpose or effect of must be respected by supervisors. State rules unreasonably interfering with an individual’s vary as to whether public employees are cov- work performance or creating an intimidat- ered by civil service rules. ing, hostile, or offensive work environment.58 There is, therefore, no need for adverse action D. Rights of Employees Given by from the supervisor for sexual harassment to Agency Policies take place. Agency policies sometimes give rights to In Cuesta v. Texas Dept. of Criminal Justice,59 employees beyond those given by the United a 1991 decision, the court held that harass- States Constitution and laws. Those policies ment that affects the psychological well- are binding on the agency. These rights may being of the employee is enough, although be enforced in state courts. Agencies must the defendant could not prove that a term or therefore be careful when drafting agency condition of her work was affected. Further, policies affecting their own employers. the court held that the department had a These policies do not rise to the level of lot of inappropriate behavior pervading the constitutional rights; hence, they cannot be work environment; therefore, the board had the subject of a lawsuit under Section 1983, knowledge of the harassment on a construc- which is a source of legal action under state

UPERVISORS tort law. S tive level. Sexual harassment is an active area of law that is currently in the process of refinement by the courts. In 1998 alone, E. Rights of Employees Given by FFICERS AND

O the United States Supreme Court decided Collective Bargaining Agreement three cases on sexual harassment that have Collective bargaining agreements cover vari- AROLE

/P implications in probation and parole. These ous aspects of employment. These provisions cases deal with the issues of same sex harass- are specific about working conditions and ment,60 reasonableness of employer’s con- ROBATION usually give more rights to employees than P 61 duct, and lack of adverse consequences for are given by the Constitution and laws. 62 rejecting advances. These rights bind the agency and must be SSUES FOR I respected. Penalties for violations are usually

EGAL C. Rights of Employees Given by provided for in the collective bargaining L State Laws agreement itself. Some probation/parole THER O Many federal laws have also been enacted into employers are unionized and working condi- state laws and can, therefore, be enforced by tions are governed by collective bargaining the states, usually by creating a state Human agreements; other employers are not.

IABILITIES AND Rights Commission. When this happens, the L IVIL C

176 CHAPTER IV. AGENCY could be liable for damages, it declined to find liability for respondeat superior, or sim- REPRESENTATION ply because of employment. Further, quoting from Popow v. City of Margate, a 1979 deci- 10 AND LIABILITY L sion, “[T]o establish municipal liability, a OF IABILITIES FOR ACTS OF plaintiff must prove either (a) an official policy or custom which results in constitutional SUPERVISORS violations, or (b) conduct by officials in S

authority evincing implicit authorization or UPERVISORS s a general rule, a supervisor is person- approval or acquiescence in the unconstitu- A ally liable if he or she acts outside the tional conduct.”69 scope of employment. State officials sued in their individual capacity are liable for civil In Quern v. Jordan,70 the Court reiterated rights violations,63 although neither the state that the 11th amendment immunity barred nor state officials may be sued in state court suits against states for damages, thus reaf- under Section 1983, when they were acting firming the doctrine of sovereign immunity. in their official capacity.64 An employee’s act As a result, only natural persons, municipali- is within the scope of employment if the ties, cities, and other local units of govern- following are present: the act is of the kind ment can be sued for damages without he or she is employed to perform; it occurs consent. State immunity is alive and well, within the authorized time and space limits; unless waived by legislation, which many and it is performed, at least in part, with states have done in varying degrees, or in the intent of serving the employer.65 In short, court decisions. In an action for overtime there is no governmental liability unless the pay, the Court held probation officers could act performed is at least incidental to employ- not sue their state due to sovereign immuni- ment and a part of the employee’s duties. As ty.71 The federal legislature does not have to who is the employer, the Court held in the authority to override a states sovereign 1997 that whether a sheriff is an agent of the immunity with a federal law. Even in states county or state is determined by the state’s where sovereign immunity still applies in constitution, laws, and other regulations.66 totality, nothing bars the state from indemnifying its own supervisors for liability 67 In an earlier case, Monroe v. Pape, the incurred while acting in the course of duty. United States Supreme Court decided that The Court found that municipalities cannot the plaintiff could not recover from the claim a good faith defense under Section municipality in Section 1983 cases, saying 1983.72 that “the response of the Congress to make municipalities liable for certain actions . . . If a supervisor acts outside the scope of was so antagonistic that we cannot believe employment and is sued in his or her indi- that the word ‘person’ was used in this par- vidual capacity, chances are that the agency ticular context to include them.” All that will refuse to provide legal defense, nor will changed in 1978, when in Monell v. Depart- the agency indemnify if the officer is held ment of Social Services,68 the court reversed liable. The matter of legal representation itself, holding that municipalities and other should be a justifiable cause of concern local government units are “persons” that among supervisors because of its undefined can be sued directly under Section 1983 for status. While some states provide representa- monetary, declaratory, or injunctive relief. tion as a matter of right, surveys have shown Although the court found the municipality that legal representation in many states is

177 largely unstructured.73 In some states and inevitable implication that in the judgment agencies, an informal and unwritten under- of the agency the act was unauthorized. A standing allows the state attorney general to second source of conflict of interest comes defend the supervisor if, in his or her judg- from the supervisor’s relationship with his or ment, the case is meritorious. In municipal her subordinate. A supervisor, when sued for agencies, the practice is even more uncer- what his or her subordinate has done, may tain, with no designated legal counsel to want to dissociate himself from the act, undertake the defense and no official legal claiming either that the subordinate acted representation policy. on his or her own or in defiance of agency policy, particularly when the violation is To compound the uncertainty, most juris- gross or blatant. In these instances, the dictions will represent only if the employee supervisor’s defense will be inconsistent with acted within the scope of duty. That may that of the subordinate. Determination will sound reasonable and consistent with public have to be made by the agency as to the policy, except that the term “scope of duty” party it will defend and whom to indemnify is subjective and eludes precise definition. if held liable. Chances are that the agency An agreed and viable working definition will decide for the supervisor, but that is a goes a long way toward protecting the decision to be made by policymakers on a rights of officers and alleviating anxiety. case-by-case basis. Additionally, it is necessary that there be an understanding that a trial court’s finding ■■■ that the officer acted outside the scope of duty, and, hence, is liable, not be made binding on the state or local agency for pur- SUMMARY poses of indemnification or representation on appeal. An independent judgment must upervisory liability is a fertile source be given to the agency, based on circum- S of civil litigation against probation and stances as determined by that agency. Ideally, parole personnel and departments. The only gross and glaring cases of abuse should developing case law in this field strongly

UPERVISORS suggests the need for supervisors to know S be denied representation or indemnification. Without this understanding, agency legal the legal limits of their job and to be more assurances of indemnification may only be a aware of what goes on among, and the com-

FFICERS AND petencies of, subordinates in their depart-

O mirage because, as current case law stands, acts done by a supervisor in good faith and ment. An area that deserves immediate

AROLE attention, because of increasing court litiga-

/P within the scope of employment are likely to be exempt from liability anyway, so there is tion, is negligent failure to train. Indications nothing to indemnify. are that training is a neglected area in cor- ROBATION

P rections. This is deplorable because correc- Supervisory lawsuits can lead to a possible tions in general is a field that, because of low pay and unattractive job status, needs train- SSUES FOR conflict of interest in a number of ways. If I the supervisor is sued in both an official and ing even more than the other subsystems in EGAL L individual capacity, the agency might assert criminal justice if the quality of personnel is

THER that the supervisor acted outside his or her to be upgraded. Problems arise for supervisors O scope of duty and hence should be personal- because of financial constraints occasioned ly liable. In the absence of mandated repre- by the reluctance of political decisionmakers sentation, the supervisor will most likely to commit financial resources to training, IABILITIES AND

L have to provide his or her own defense. This despite perceived need. Such neglect carries

IVIL creates a financial burden and places the serious legal implications for the supervisor C supervisor at a disadvantage because of the and decisionmakers, hence must be given 178 proper and immediate attention. CHAPTER In addition to civil liability for what their 8. 610 F.2d 693 (10th Cir. 1979). subordinates do, supervisors are liable for what they do to their subordinates. 9. 763 F.2d 394 (10th Cir. 1985). Supervisors must be familiar with the rights 10 10. Oklahoma City v. Tuttle, 37 Cr. L. 3077 L of their subordinates that are given by the OF IABILITIES Constitution, federal and state laws, agency (1985). policy, and collective bargaining agreements. 11. Board of the County Commissioners of These rights vary a lot from state to state

Bryan County, Oklahoma v. Brown, 520 U.S. S and have become a rich source of litigation. UPERVISORS 397 (1997). Sexual harassment should be an area of concern for supervisors. Agencies must have 12. 489 U.S. 378 (1989). policies on sexual harassment, and complaints should be promptly investigated. 13. Macigewski v. Backus and Kandrevas, Nos. Sexual harassment of subordinates by super- 97-1516; 97-1591; 1998 U.S. App. LEXIS visors, once proven, almost always leads to 15395. liability and other consequences. 14. Alberti v. Sheriff of Harris County, 460 F. The days of unfettered discretion among Supp. 649 (S.D. Tex. 1975). supervisors in probation and parole are gone. Judicial scrutiny can be irritating and 15. See AELE Special Report, The AELE Workshop sometimes frustrating for a probation or on Police and Liability and the Defense of parole supervisor, yet it can also lead to Misconduct Complaints (Americans for Effective more effective and equitable administration, Law Enforcement, 1982), p. 12-1. something the public desires and deserves. Judicial intervention and supervisory liabili- 16. Moon v. Winfield, 383 F. Supp. 31 (N.D. ty may be a mixed blessing, but they are Ill. 1974). realities with which probation and parole supervisors must learn to live and cope. 17. Peters v. Bellinger, 159 N.E.2d 528 (Ill. App. 1959). Notes 18. 520 U.S. 397 (1997). 1. This chapter is a modified and updated version of an article that was first published in 19. 383 F. Supp. 31 (N.D. Ill. 1974). Federal Probation, September 1984, pp. 52-56. 20. Weinberger v. State of Wisconsin 105 F.3d 2. Brandon v. Holt, 469 U.S. 464 (1985). 1182 (1997).

3. Retenauer v. Flaherty, 642 A.2d 587 (1994). 21. Ford v. Brier, 383 F. Supp. 505 (1974).

4. Del Carmen, Rolando. 1984. “Legal Liabilities 22. Moon v. Winfield, 383 F. Supp. 31 and Responsibilities of Corrections Agency (N.D. Ill. 1974). Supervisors.” Federal Probation, September 1984. 23. 295 F. Supp. 1025 (D.D.C. 1968). 5. Meistinsky v. City of New York, 140 N.Y.S.2d 212 (1955). 24. 349 So. 2d 1334 (La. App. 1977).

6. Owens v. Haas, 601 F.2d 1242 (2d Cir. 25. Hardy & Weeks, Personal Liability of Public 1979), cert. denied. Officials Under Federal Law 7 (1980).

7. 601 F.2d 1242 (2d Cir. 1979), cert. denied, 26. J. Palmer, Civil Liability of Correctional 100 S. Ct. 483. Workers 24 (1980). 179 27. Ford v. Brier, 383 F. Supp. 505 (E.D. Wis. 46. This section relies on an article by P. Rubin, 1974). Civil Rights and Criminal Justice: Employment Discrimination Overview (Research in Action, 28. Dewell v. Lawson, 489 F.2d 877 (10th Cir. U.S. Department of Justice, National Institute 1974). of Justice, June 1995, NCJ 154278).

29. 302 F. Supp. 1972 (N.D. Mass. 1969). 47. 29 U.S. Code, Sec. 206 (1976).

30. 162 A.2d 820 (N.J. 1960). 48. 42 U.S. Code, Sec. 2000e (1976).

31. See AELE Special Report, supra note 11, at 49. Reeves v. Sanderson Plumbing Products, No. 122. 99-536 (2000).

32. L.R. No. 10509 (W.D. Tennessee 1981). 50. Sections 501.503, and 504, 29 U.S. Code, Sec. 791, 793, 794. 33. 71 N.E.2d 419 (Ct. App. N.Y. 1974). 51. 42 U.S. Code, Sec. 12101. 34. Garrity v. New Jersey, 365 U.S. 493 (1967). 52. 42 U.S. Code, Sec. 1981 et seq. (1976). 35. See Pickering v. Board of Education, 391 U.S. 563 (1968). 53. 29 U.S. Code, Sec. 2601 et seq. (1976).

36. See New York v. Onofre, 48 U.S.L.W. 2520 54. 42 U.S. Code, Sec. 2000k (1976). (N.Y. App. Div. January 24, 1980). 55. 38 U.S. Code, Sec. 2012. 37. 391 U.S. 563 (1968). 56. 42 U.S. Code, Sec. 2000e-2000e-17 (1976). 38. O’Connor v. Ortega, 480 U.S. 709 (1987). 57. See Americans for Effective Law Enforcement, 39. Safransky v. State Personnel Board, 215 Legal Defense Manual, 1982, p. 49. N.W.2d 379 (1974). UPERVISORS S 58. See G. Brancato and E.P. Polebaum, The 40. Acanfora v. Board of Education, 359 F. Rights of Police Officers (New York: Avon Books), Supp. 843 (D. Md., 1973). 1980, pp. 5859. See also, Jansen v. Packaging FFICERS AND

O Corp. of America, 895 F. Supp. 1053 (1995). 41. Norton v. Macy, 417 F.2d 1161 (D.C. Cir., AROLE

/P 1969). 59. 805 F. Supp. 451 (1991).

42. Shuman v. City of Philadelphia, 470 F. Supp.

ROBATION 60. Onscale v. Sundowner Offshore Services, P 449 (E.D. Pa. 1979). Inc., 523 U.S. 75 (1998).

SSUES FOR 43. There are federal and state laws restricting the I 61. Faragher v. City of Boca Raton, 524 U.S. political activities of certain public officers. See, 775 (1998). EGAL L in general, BRANCATO, supra note 31, at 78.

THER 62. Burlington Industries, Inc. v. Ellerth, 524 O 44. 675 F. Supp. 266 (1987). U.S. 742 (1998).

45. MacKenzie v. Snow, 675 F. Supp. 1333 63. Hafer v. Melo, 502 U.S. 21 (1991).

IABILITIES AND (1987). L IVIL C

180 CHAPTER 64. Will v. Michigan Department of State Police, 69. 476 F. Supp. 1237, at 1245 (1979). 491 U.S. 58 (1989). 70. 440 U.S. 332 (1979). 65. See AELE Special Report, supra note 11, at 10 71. Alden v. Maine 527 U.S. 706 (1999). L 14-1. OF IABILITIES

66. McMillan v. Monroe County, Alabama 520 72. Owen v. City of Independence, 445 U.S. U.S. 781 (1997). 622 (1980). S UPERVISORS 67. 365 U.S. 167 (1961). 73. See, in general, R. del Carmen, “Legal Responsibilities of Probation and Parole Officers; 68. 436 U.S. 658 (1978). Trends, General Advice, and Questions,” Federal Probation 45 (3) (Sept. 1981).

181

CHAPTER 11 Questions, Specific Concerns, and General Advice

INTRODUCTION

I. QUESTIONS

II. SPECIFIC CONCERNS FOR PROBATION/PAROLE OFFICERS

A. Legal Representation B. Indemnification C. Professional Liability Insurance D. Immunity Statute E. Source of Authoritative Information

III. GENERAL ADVICE

A FINAL WORD

NOTE HPE 11 CHAPTER

CHAPTER INTRODUCTION addressed in this monograph and help apply these legal concerns to individual states or his final chapter features questions, jurisdictions. It would be in the interest of probation/parole officers to arrange a semi- 11 specific concerns, and general advice T Q that should be of help to readers. Taken nar or workshop with their employers, legal UESTIONS from the first edition of the book, the ques- advisors, or other knowledgeable persons tions that start the chapter are a composite who can give authoritative answers to the following: , S of the concerns expressed by the Board of PECIFIC Consultants for the first edition. The ques- 1. If I am sued in a criminal, tort, or civil tions are featured in this final chapter to C

liability action in state or federal court, ONCERNS heighten awareness of the legal issues that will my agency or employer provide a need further study and exploration in spe- lawyer to represent me? cific jurisdictions. , 2. If a parolee, probationer, or anyone else AND

Five concerns are also addressed in this chap- is contemplating suit against the agency, G ter: legal representation, indemnification, agency personnel, or me, and I am con- ENERAL professional liability insurance, immunity tacted by their lawyer, what should I do? statute, and source of authoritative informa- A 3. What specifically should I do if and when DVICE tion. Not much has changed in these con- I am served with legal papers and/or court cerns since the first edition was published; documents indicating that a lawsuit has therefore, these concerns are reiterated. been filed against me? Finally, general advice is given to proba- 4. If there is a conflict between me and a tion/parole officers on how legal liability codefendant, or me and my agency, will might be lessened or avoided. The generic the government appoint a different attor- advice given here represents the composite ney for me? result of an extensive national survey of 5. Are there any special defenses available to offices of attorneys general that was con- me as a state probation/parole officer in a ducted in the early eighties for the first edi- tort suit in which I am the defendant? tion of this book. There is every reason to think that their advice would be the same 6. Are there any specific criminal laws in today; hence, that part of the survey is repli- my jurisdiction of which I must be aware cated in this third edition. It is not meant, that apply specifically to probation and/or however, to preempt the advice of a legal parole officers or public officials/employees? counsel who is more familiar with the law 7. Are there any decided cases in my state in specific jurisdictions. where a probation/parole officer has been held liable under state tort law either to ■■■ the client or to a third party? If yes, how will those cases affect me? I. QUESTIONS 8. What type of immunity, if any, do I enjoy as a probation/parole officer under my or better legal protection and deeper state’s law? Fawareness, listed below are important questions probation/parole officers should 9. Does our state have laws that would ask and for which they should obtain answers indemnify me if I am found liable in a from their employers and legal advisors. state tort or a federal civil rights action? If These questions highlight several vital issues so, how do these laws apply to me? Is the coverage mandatory or optional? 185 10. What do I have to do to enhance my 19. Who is my legal advisor? Is there any chances of indemnification if I am sued? public official to whom I can turn who What procedures must I follow? is obligated to advise me in legal matters and upon whose advice I am enti- 11. What is the best way, consistent with tled to rely? the laws of my state, to protect my personal assets from seizure and execution 20. Am I a peace officer? What are my law for satisfaction of a judgment against enforcement powers vis-à-vis arrest, me? search, seizure, and ability to assist and be assisted by law enforcement officers? 12. Is there any kind of liability insurance Am I empowered to carry a weapon? available to me individually or as a member of a group through the government 21. Does my court or agency have any or privately? guidelines on arrest and search or frisk of offenders and their homes and property? 13. Does our state have a state civil rights law that might affect me in my work? 22. Are there specific laws in our state that If so, what and how? relate to my responsibilities and duties as a public employee and as a proba- 14. Does our state have a law covering the tion/parole officer in particular? What issue of disclosure of information about are they? the offender to others (e.g., privacy laws, laws on confidentiality of criminal 23. Are there specific laws in our jurisdic- offender record information, and laws tion that set out the rights and duties on the confidentiality of mental health, of my offenders? education, and vocational information)? 24. Do we have a written policy on assess- If so, how does it apply to me and what ment of restitution that will give the are the penalties and procedures for probationer access to a judicial determi- violations? nation if he disagrees with the amount 15. Does our state have a state law that claimed by the victim or assessed pre- gives the offender, his or her lawyer, his liminarily by me? UPERVISORS S or her designate, or others access to 25. According to state law or court deci- information in my file or in my reports? sions in this state, can a judge or parole If so, what are the specific requirements

FFICERS AND board delegate the imposition of condi- O and what are the penalties and proce- tions or the setting of the restitution dures for noncompliance? AROLE amount to me? If these cannot be dele- /P 16. Does our state have an Administrative gated, but judges or boards do it any- Procedures Act that applies to me? way, what is my best defense under state ROBATION

P If so, how? law against liability? 17. As a parole officer, what should I do if, 26. Do we have a written policy on my SSUES FOR I at a revocation hearing, I feel that the imposing or modifying conditions of

EGAL hearing officer is denying the parolee probation or parole that will give the L his or her rights to due process under offender immediate access to the judge

THER Morrissey

O ? or board if he contests my action? 18. Is there a compilation of regulations, 27. What should I do about transporting policies, and directives that govern my offenders (prisoners) in my private

IABILITIES AND conduct as an employee and relate specif- vehicle? What responsibility will my L ically as to my work with offenders? employer assume in the event of an IVIL C auto accident? 186 CHAPTER 28. Should I warn third persons if I believe an officer accused of a crime. Creation of the offender presents a possible danger to a state statute making such defense by the them? If so, under what circumstances? state obligatory should be explored, if no If it is a close call, whom should I con- such statute exists. Legal representation can 11 Q

tact for advice? be undertaken by the office of the attorney UESTIONS general, the city or county legal officers, or 29. Do you want me to advise offenders through a system similar to medical insur-

on procedures and on how to put their , S ance where an employee has the option to “best foot forward” when appearing PECIFIC choose his or her own lawyer. before the court or board? C

30. Do you want every violation reported Legal representation on the local government ONCERNS to the court or parole board? level is much less reassuring than representation for state officers. This is significant 31. What do the terms “good faith” and ,

because while parole agencies in a great AND “negligence” mean in our state? majority of states are administered and fund- G

32. How can I be sure that I am informed ed by the states, probation offices are pre- ENERAL on an up-to-date basis regarding admin- dominantly controlled on the local level, istrative rules, regulations, and decided either by local judicial districts, judges, or A cases affecting me? political agencies. Each agency determines DVICE the type of legal representation it gives to ■■■ local public officers. Arrangements vary from allowing local officials to get their own lawyer at county’s expense to having the II. SPECIFIC county or district attorney represent the offi- CONCERNS FOR cer. Whatever the arrangement, it is important that the policy on representation and PROBATION/PAROLE indemnification be clarified and formalized. OFFICERS An informal policy (“Don’t worry, we will take care of you if a lawsuit is filed”) should be avoided because it can be implemented A. Legal Representation selectively and is far from reassuring. Legal representation should rank as a major concern of probation/parole officers. In B. Indemnification some states, an unwritten understanding Closely related to representation is the issue exists that allows the state attorney general of indemnification, if and when the officer is to undertake the defense of a public officer held liable. A majority of the states provide if, in the attorney general’s judgment, the indemnification for the civil liabilities of their case is meritorious. This informal but perva- public employees, albeit in varying amounts. sive practice creates uncertainty and allows The conditions under which the state will denial of representation based on political or pay also vary and are sometimes unclear. personal considerations. States use various Moreover, although most states provide for guidelines in deciding the kinds of acts they some form of indemnification, states often will defend. While all of the states surveyed do not automatically indemnify. In most states for the first edition of this monograph stated and local agencies, employees can expect the that they provide legal representation at least state to help pay the judgment only if the some of the time, a substantial number indi- act on which the finding of liability is based cated that they will not defend in all civil was within the scope of employment and suits. The same survey showed that half of done in good faith. The definitions of the the states will not undertake the defense of terms “within the scope of employment” 187 and “good faith” vary from state to state, indemnification) cannot be indemnified and a decision not to represent an employee under most state laws because he acted is usually final and not appealable. in bad faith and/or outside the scope of employment. Probation/parole officers are advised to look into their specific state statutes covering C. Professional Liability legal representation and indemnification. Insurance If no such statute exists, the possibility of adopting one ought to be examined to ensure Professional liability insurance should be maximum protection for the officers. Part of given serious consideration along with the the lack of protection comes from a defini- issues of legal representation and indemnifi- tional problem. While it is difficult, if not cation. According to the project survey for impossible, to spell out very specific guide- the first edition, only a minority of states lines that further refine the phrases “acting (30 percent) have insurance protection for within the scope of duty” and “good faith,” probation/parole officers. Insurance is par- working definitions of these terms go a long ticularly desirable in states where legal repre- way toward alleviating anxiety and minimiz- sentation or indemnification is either absent ing arbitrariness. Such definitions are not or uncertain. This is because insurance com- found in a number of current statutes. panies may provide both legal counsel and damage compensation. In states where insur- For purposes of maximum protection, it is ance is not provided, the enactment of a law important that there be an understanding or the issuance of an administrative policy that a trial court’s finding that the officer should be explored and, wherever feasible, acted outside his scope of duty and in the recommended. Otherwise, personal purchase absence of good faith not be made binding of insurance should be considered. on the state or local agency, particularly for purposes of indemnification. An independ- The problems associated with professional ent determination must be allowed the rep- liability insurance, however, are varied. In resenting or indemnifying state authority the first place, although law enforcement

UPERVISORS officers can easily obtain insurance, only

S (usually the attorney general’s office for state officers and the district attorney or county a few insurance companies carry liability attorney for local officers), based on circum- insurance for corrections personnel. By con-

FFICERS AND stances as perceived by that agency. Only trast, liability insurance for police officers is O cases that are gross and obviously outside readily obtainable either individually or col-

AROLE the scope of employment should be denied lectively through police associations. The /P legal representation and indemnification. second problem is premium payment. Ideally, Without this understanding, a state’s legal it should be paid by the agency, but some ROBATION P representation and indemnification law can states and local government units do not be ineffective because, as current case law allow public money to be used for employee liability insurance. Third, policymakers,

SSUES FOR stands, acts that are performed by proba- I tion/parole officers in good faith and within whether on the state or local level, may not EGAL L the scope of their employment are exempt be disposed to obtain liability insurance for their employees because of high premiums, THER from liability anyway. So, because of the O prerequisite of the “good faith” and “acting preferring instead to be self-insured, mean- within the scope of employment” provisions ing that they will pay out of their own funds of most state laws, an officer who acts in if liability ensues. The employee paying the

IABILITIES AND premium is always an option, but that can L good faith has no liability (and therefore be prohibitive for the employee. IVIL needs no indemnification), whereas one C who is adjudged liable (and therefore needs 188 CHAPTER D. Immunity Statute each state develop a manual, perhaps along Another possible source of protection that the topics discussed in this monograph. should be explored by probation/parole offi- Some states have already done this, focusing on certain specific areas of concern. The 11 cers requires action by state legislatures. The Q

United States Supreme Court, in Martinez v. state manual need not be lengthy, but it UESTIONS California,1 held that California’s immunity must contain information specific to that statute was constitutional when applied to state. The topics discussed in this monograph, as well as the questions listed above, , S defeat a tort claim arising under state law. PECIFIC That section of the California law (section should be helpful starting points. Agency 845.8(a) of the California Government manual writers should remember, however, C

Code) provides as follows: that this monograph gives generic informa- ONCERNS tion that may not apply to each state or Neither a public entity nor a public jurisdiction. Moreover, the information in , employee is liable for: (a) Any injury this publication may quickly be superseded AND by new decisions and statutory develop- resulting from determining whether G to parole or release a prisoner or from ments. Each state should update the infor- ENERAL determining the conditions of his mation in its manual periodically, perhaps

parole or release or from determining through the probation/parole or corrections A DVICE whether to revoke his parole or release. association’s newsletter or occasional memo- randa from the probation/parole agency or A similar statute may be enacted by other the office of the attorney general. states at the initiative of probation parole officers. It may be necessary, however, to ■■■ keep an avenue open for meritorious claims. This can be done by creating a state admin- III. GENERAL ADVICE istrative body or a court of claims where reasonably deserving cases may be adjudicated. he survey questionnaire sent by the Note, however, that a state-enacted exception T project staff in the early eighties to all from civil liability does not apply to Section offices of attorneys general in the United 1983 cases, which are based on federal law. States included the following question: But although the applicability of a state What three most important bits of immunity statute is limited to state tort liti- legal advice would you give probation gations, such a law does extend a measure of and parole officers to help them avoid protection to public officers. Although the or lessen possible legal liability in con- California statute specifically limits its cover- nection with their work? age to parole cases, there appears to be no legal impediment to extending that coverage There is no more recent survey than that to include probation officers, particularly on conducted for the first edition, which was such matters as the setting of conditions, done in the early 1980s, but the answers are supervision, and probation revocation. not likely to have changed over the years. The results of that survey are therefore E. Source of Authoritative reproduced here. Ranked in the order of Information response frequency, the top five answers Probation/parole officers in each state need a were as follows: source to which they can refer for authoritative information on the topics addressed ■ Document your activities. Keep good here. It is suggested that, at the very least, records. (40 percent) 189 ■ Know and follow departmental rules ■ Advise officers on ethical practices. and regulations and your state statutes. ■ Do not act as a police officer. (35 percent) ■ Avoid transporting offenders when possible. ■ Arrange for legal counsel and seek legal advice whenever questions arise. ■ Ensure safeguards for client property. (27 percent) It behooves probation/parole officers to note ■ Act within the scope of your duties, and these words of advice from legal professionals in good faith. (20 percent) in the field. On the other hand, a word of ■ Get approval from your supervisor if you caution is in order. Knowledge of legal respon- have questions about what you are doing. sibilities and awareness of possible liabilities (18 percent) could lead an officer to the path of overcau- tion amounting to inaction. This should be Other bits of advice (in descending avoided because reluctance or failure to per- order) were: form one’s duties can often be more damaging than acting incorrectly. In case of doubt, ■ Keep up with developments in your field the general principle is to be guided by the (e.g., relevant legal developments, statutes, principle of fundamental fairness in decision- new departmental regulations). Ignorance making, whether that decision is made by of the law or regulations excuses no one. a probation/parole officer or a supervisor. ■ Use common sense. Fundamental fairness is the essence of due process and should go a long way toward ■ Review important decisions with super- minimizing liability if a lawsuit arises. visors.

■ Undertake thorough investigations before ■■■ making recommendations.

■ Report the violations of offenders. A FINAL WORD

■

UPERVISORS Notify your supervisor immediately if you S awsuits are a burden. They cause anxi- suspect that legal action is being seriously ety, drain time, cost money, and take a contemplated. L heavy toll on parties involved. A countersuit

FFICERS AND ■ Have clear and comprehensive policies in O by the probation/parole officer in retalia- your department. tion is a possibility, but that merely com- AROLE

/P ■ Perform duties on time. pounds the problem, generates anxiety, and leads to more expenses. Avoidance of law- ■ Take out insurance. suits through proper job performance and ROBATION P ■ Stick to the facts in all dealings with fundamental fairness is the wiser option as clients. probation/parole officers continue to dis- SSUES FOR

I charge their duties and responsibilities in a ■ Do not get personally involved with time of legal challenge and constant change. EGAL

L offenders.

THER ■ Be familiar with revocation procedures. O Note ■ Keep out of politics. 1. 444 U.S. 275 (1980). IABILITIES AND L IVIL C

190 APPENDIX A The Court System and Basic Legal Concepts

I. THE COURT SYSTEM IN THE UNITED STATES

A. The Federal Court System B. State Court Systems

II. THE APPEAL PROCESS

III. THE EFFECT OF JUDICIAL DECISIONS

IV. BASIC LEGAL CONCEPTS

A. Civil versus Criminal Cases B. Criminal Conviction versus Civil Liability C. Federal versus State Jurisdiction D. Jurisdiction versus Venue E. Statutory Law versus Administrative Law F. State Tort Law versus Section 1983 G. Absolute versus Qualified Immunity H. Basic Constitutional Rights APPENDIX A

APPENDIX quick examination of any telephone Each state has at least one federal district A directory will reveal an almost bewil- court; no federal court district crosses state dering array of courts. No matter where the lines. Most districts have more than one reader is within the United States, he or she active federal district judge. A T is within the territorial or geographic juris- HE diction of at least one state court and one As an adjunct of the district courts, Congress C OURT federal district court. Given their work created the United States magistrate system

with the courts and exposure to legal liabili- to afford workload relief to the district judges. S SE AND YSTEM ties, it is important that probation/parole Magistrates have limited powers, and many officers gain a good working knowledge of are connected with the preliminary stages the various levels of courts and basic legal of criminal cases, such as issuing search and arrest warrants, holding bail hearings, and B concepts. This appendix seeks to do that. ASIC Space and function limitations do not per- conducting preliminary hearings. Of special L mit us to explain the specific power of each relevance here is the fact that, in some fed- EGAL of the many types of courts to pass upon eral districts, magistrates are called upon to C the actions of probation/parole officers. make a preliminary assessment of the merit ONCEPTS However, an outline of state and federal of Section 1983 cases. court systems can be presented. The United States Courts of Appeals occupy ■■■ the middle rank of the federal court system. Each of the 13 courts of appeals serves a designated multistate territory, except for the Court I. THE COURT of Appeals for the District or Columbia. The SYSTEM IN THE size of the bench in each appellate “circuit” varies. Altogether, as of 1999, the courts of UNITED STATES appeals were authorized to have 179 active circuit judges. Most court of appeals cases he United States has a dual court sys- are decided by “panels” of at least three T tem: federal and state. This is, however, judges. (Panels may include district judges a misnomer because in reality the United and circuit judges who are not on the court’s States has 52 different systems comprising active roster.) When court of appeals panels the court systems of the 50 states, the federal reach different conclusions on points of law, government, and the District of Columbia. and in other circumstances, courts of appeals Nonetheless, for the purpose of an overview, might meet en banc. dividing courts into federal and state suffices. B. State Court Systems A. The Federal Court System If examined in any degree of detail, the court There are three layers to the federal system systems of the 50 states and the District of of courts of general jurisdiction. At the top Columbia appear to be highly idiosyncratic. of the hierarchy is the Supreme Court of the Fortunately, the state systems are enough like United States. Except for a few situations in each other and the federal court system to which cases can be heard originally by the make quick summary possible. Supreme Court, it is exclusively an appellate or reviewing court. The Supreme Court is A supreme court is at the pinnacle of each composed of nine Justices, who hear and state’s system. Texas and Oklahoma have decide all cases as one body (en banc). specialized supreme courts; in each, there is one court of last resort for civil cases and a At the base of the federal system are 94 dis- different one for criminal cases. In Maryland trict courts, which, in 1999, had 646 judges. and New York, the highest court is called 193 the court of appeals. The states call their general jurisdiction trial most are found to have been rightly decided courts by many different names; sometimes at the level below, or otherwise not subject more than one name is used in a state. to reversal. Circuit court, district court, and superior court are the most popular choices. Most The dual court systems—federal and state— states have an even lower level of original merge at the Supreme Court of the United jurisdiction courts, to which have been States. Because the supremacy clause of the applied a greater variety of names. Courts Constitution makes the Constitution the at this level have limited and/or specialized “supreme Law of the Land,” and because jurisdiction. In many cases, they are courts the Supreme Court decides the meaning of not of record. Typically, the procedures the Constitution, that body can review state in such courts are less formal than those supreme court decisions insofar as they observed in the courts of general jurisdiction. pass on claims or defenses founded on the Constitution or laws enacted under its A majority of states have a layer of appellate authority. Conversely, the Supreme Court courts below the Supreme Court. will not disturb a state decision that it finds was based on adequate state law grounds. ■■■ Two other consequences flowing from the supremacy clause must be mentioned. First, II. THE APPEAL state courts may not decide a case contrary PROCESS to the Constitution; the clause specifically requires state court judges to observe the ith rare exceptions, cases enter the Constitution, and they take an oath to do W federal and state judicial systems at so. Second, unless precluded by a federal law the trial court level. At that level, a jury— from doing so, claims arising under federal or the judge in cases being heard without a law may be heard in state as well as federal jury—determines the facts of the case based courts; state courts have concurrent juris- on the evidence presented. By applying the diction over most federal causes of action, UPERVISORS S facts to the settled, applicable law, the judge including Section 1983 cases. This has or jury determines the outcome of the suit. proved to be of limited practical significance, however, because most plaintiffs have

FFICERS AND preferred to have federal courts hear their

O It is axiomatic that every case has a winner and a loser. A party seeks review, and possi- federal claims. (In certain, limited circum-

AROLE stances, federal courts have been authorized

/P ble reversal, of an unfavorable judgment by appealing it up the judicial hierarchy. In by Congress to hear cases originally brought states without an intermediate appellate in state court.) ROBATION P court, all appeals are heard by the supreme court. Courts of appeal do not hear further The reader should also be aware of the concept of precedent. While the immediate SSUES FOR

I evidence; generally, they do not reevaluate the evidence presented in the trial court. function of every judicial decision is to settle EGAL L Their function is to determine errors of law the rights of the parties before the court, a

THER and give a remedy for prejudicial but not secondary function is to forecast how subse- O harmless errors. quent, similar cases will be decided so that other persons can conform their conduct A large majority of the cases filed in any court to the demands of the law. This predictive IABILITIES AND

L system are finally decided at the lowest level. aspect is the precedential value of a case. As

IVIL Appeal is more a potential than an actual part a result of the hierarchical structure of court C of the usual case. Of those cases appealed, systems, the precedential value of a case— 194 APPENDIX and often its persuasiveness—varies directly The same process operates in the state court with the level of the court that decided it. systems. There is one regard, however, in The Supreme Court of the United States which state supreme court decisions are rec- hands down the decisions of greatest future ognized as extending beyond state borders. A T significance; trial courts render decisions that Since the Constitution declares the sover- HE have comparatively slight utility as precedent. eignty of the states within the areas reserved C OURT for state control, the court of last resort of

From these facts and principles, it is possible each state is the final arbiter of issues of S SE AND YSTEM to distill guidelines concerning the relevance purely local law. The meaning that the of the court decisions cited in this book, or Supreme Court of California gives to a state found elsewhere, to the individual reader. statute, for example, will be respected even B

by the United States Supreme Court as ASIC ■■■ authoritative. L EGAL The existence of dual court systems, state III. THE EFFECT OF C and federal, and the limited jurisdictional ONCEPTS JUDICIAL DECISIONS reach of the vast majority of courts make it practically inevitable that the courts will ren- he jurisdiction of every American court der conflicting decisions on a single point of T is limited in some way. One type of law. A core function of the appellate process limitation is territorial or geographic. In a is to provide a forum for resolving these strict sense, therefore, each judicial decision conflicts. Indeed, the existence of a conflict is authoritative and has precedential value in the law is a strong argument for securing only within the geographic limits of the area appellate review of an unfavorable decision. in which the deciding court is authorized to function. Hence: But an unresolved conflict is just that— unresolved—and each competing decision ■ United States Supreme Court decisions remains effective within the jurisdiction of on questions of federal law and the Consti- the court that decided it. As this monograph tution are binding on all American courts illustrates, there are few Supreme Court because the whole country is under its cases on probation and parole issues, and jurisdiction. other courts are in conflict on some points. The individual reader should take particular ■ Federal court of appeals decisions on note of the rule in effect for the area in such issues are the last word within the which he works, if one is given. circuit if there is no Supreme Court action. The First Circuit Court of Appeals, for The reader should be most interested in the example, settles federal issues for Maine, local rule for two reasons. First, under the Massachusetts, New Hampshire, Rhode concept of stare decisis, courts decide new Island, and Puerto Rico, the areas to cases in accordance with prior cases—with which its jurisdiction is limited. precedent. The locally effective rule can be ■ When a district court encompasses an expected to define the conduct standards to entire state, as is the case in Maine, its which the probation/parole officer will be assessment of federal law (again barring held if he becomes a defendant. Second, if appellate action) produces a uniform rule there is a change in the law, as sometimes within the state. In a state like Wisconsin, occurs, proof that the defendant was acting however, where there are multiple districts, within the law will go far toward establish- there can be divergent rules. ing a good faith defense, if that is applicable.

195 The reader cannot, however, safely ignore government’s responsibility to prove decisions from other jurisdictions. Again, “beyond a reasonable doubt” that: (1) a there are two reasons. First, there may be crime has been committed; and (2) the no settled law on an issue in his or her area. defendant committed it. If the government When that issue is presented to a local court does not carry its burden of persuasion in initially—a case of first impression— the the trial court, the case will normally end local federal or state court will probably when the trier of fact returns a verdict of decide it on the basis of the dominant or “not guilty.” The government’s right of “better” rule being applied elsewhere. appeal in criminal cases is quite restricted.

The second reason requires recognition that The person, if any, whose injury gives rise the law is not stagnant but evolving. Over to the criminal charge is known as the com- a period of time, trends develop in the law. plainant. Complainants are not formal par- When a particular court senses that its prior ties in criminal cases and usually have no decisions on a point are no longer in the role other than as witnesses. mainstream, it may give consideration to revising its holdings. The decisions reported On the other hand, no civil case can be here may enable the reader to spot a trend instituted other than by the person or entity and anticipate what local courts may be (or a proper representative) claiming to have doing in the future. been injured in some way by the action or inaction of another person. The party going ■■■ forward is the plaintiff, and the party complained against is the defendant. In most civil suits, the plaintiff seeks to recover IV. BASIC LEGAL money from the defendant as damages for CONCEPTS the harm done. In another large group of civil cases, the plaintiff seeks an injunction, nowledge of some legal concepts and which is an order from the court requiring terminology is necessary for an under- the defendant in the future to behave in a

UPERVISORS K S standing of the legal responsibilities and lia- specified way. bilities of probation/parole officers. A basic The civil case plaintiff must prove that (1) collection of these concepts is contained in

FFICERS AND the defendant owed some legal or contractu-

O Appendix B (Glossary of Legal Terms). Some al duty or obligation; and (2) some breach concepts need to be discussed more exten-

AROLE of duty by the defendant resulted in harm—

/P sively here in contrastive style so they may to the plaintiff. The nature and magnitude be better explained. of the duty, the breach, and the harm will ROBATION

P be considered in determining the type and A. Civil versus Criminal Cases size or scope of the remedy to be given the All litigation falls into one of two broad cat- plaintiff. In order for the plaintiff to prevail, SSUES FOR I egories, civil or criminal. A probation/parole he or she need only prove the case by a “pre- EGAL

L officer could face either a civil or a criminal ponderance of the evidence.” This is a much suit as a result of his or her work.

THER lighter burden of persuasion than in crimi- O nal cases; the evidence need only show that If the government charges that the officer it is more likely than not that the defendant is a wrongdoer because he or she violated breached some duty, causing harm. Civil

IABILITIES AND some criminal law, the probation/parole offi-

L plaintiffs and defendants have equal rights cer will become accused—the defendant—

IVIL of appeal. C in a criminal case. It will then be the 196 APPENDIX B. Criminal Conviction versus On the other hand, if X is found civilly Civil Liability liable, the finding cannot be introduced Conviction in a criminal case is a much more in evidence in a subsequent criminal case against X arising out of the same act. A

serious matter than being found civilly liable. T In addition to the opprobrium that the crim- HE C inal defendant may suffer as a result of con- C. Federal versus State OURT viction, these differences should be noted. Jurisdiction S Suppose a probationer or parolee wants to AND YSTEM Type of penalty. Monetary penalties are pos- file a civil case against a probation/parole sible in either type of case: damages in a civil officer. How is the lawyer to know whether action, a fine in a criminal case. Additionally,

the case should be filed in a state or a feder- B probation, incarceration, and alternative al court? The answer is that it normally ASIC community service may be imposed on the depends on the law being invoked. If the L EGAL defendant upon conviction. case alleges a violation of federal law, it is

filed in a federal court; if the alleged viola- C Collateral effects. Criminal conviction carries ONCEPTS tion is of a right or interest created by state with it civil disabilities, meaning that the law, it is filed in a state court. The chapters convicted person may be barred by state or on legal liabilities talk about the two types federal statute from exercising certain rights of civil cases for damages usually brought during and even after service of the sentence. against probation/parole officers: Such divested rights usually include the right to vote, to be a member of a jury, to be a ■ Tort cases, which are usually filed in state guardian, to hold public office, and to obtain courts based on state tort law. certain types of employment. If the offense of which the defendant is convicted is a ■ Section 1983 (civil rights) cases, which are felony, in some jurisdictions that conviction usually filed in federal courts because the constitutes grounds for divorce. Civil liability basis is an alleged violation of Section carries no such disabilities; hence, its effect is 1983 of 42 U.S. Code. not far reaching. In criminal cases, the same basic rule Evidentiary effects. Conviction in a criminal applies. If an act is a violation of federal case may be introduced as evidence in a sub- law, the federal government must prosecute. sequent civil case arising out of the same Conversely, if the act is a violation of state incident, but a judgment of civil liability law, the state will prosecute in a state court. cannot be used as evidence in a subsequent criminal case. However, if the act violates both federal and state criminal laws (such as when a proba- For example, X, a probation officer, pleads tion/parole officer illegally arrests a proba- guilty to a criminal charge of unlawful tioner or parolee), both governments may search and seizure of a probationer’s apart- prosecute. There is no double jeopardy ment. That guilty plea may be used as evi- because of the “dual sovereignty” doctrine, dence later in a state tort liability case that which says that states and the federal gov- the probationer may bring against X. This is ernment are both sovereign entities and, because the amount of evidence needed to therefore, may prosecute the same act sepa- convict in criminal cases is “beyond reason- rately. This does not usually happen in fact able doubt,” which is much higher in degree because federal or state prosecutors as a mat- of certainty than the mere “preponderance ter of policy generally disfavor subsequent of evidence” needed in civil cases. prosecutions if they are satisfied with the

197 results in the first case. Successive prosecu- E. Statutory Law versus tions, however, are constitutional and have Administrative Law been resorted to in a number of cases. Statutory law is law passed by the state or federal legislature, such as a state tort law D. Jurisdiction versus Venue or Section 1983), while administrative law The meaning of these terms can be confus- refers to rules and regulations promulgated ing. Jurisdiction refers to the power of a by governmental agencies such as probation court to hear a case. A court’s jurisdiction is and parole offices. Once properly promul- defined by the totality of the law that creates gated, these rules and regulations have the the court and limits its powers; the parties to force and effect of statutory law and are litigation cannot invest the court with juris- binding on that agency, its officers, and diction it does not possess. Defects in the third parties dealing with them unless and subject matter jurisdiction of a court cannot until declared illegal or unconstitutional by be waived by the parties and can be raised at the courts. The same is true, although to a any stage of litigation, including on appeal. lesser extent, with agency policies, guide- The court can raise the question of its juris- lines, and administration directives. Failure diction sua sponte (meaning on its own to follow agency regulations or guidelines motion). In order to render a valid judg- may lead to administrative action and, in ment against a person, a court must also some cases, civil liability. Conversely, com- have jurisdiction over that person. Defects pliance with agency regulation usually estab- in obtaining personal jurisdiction, however, lishes good faith or reasonableness of an can be waived by the defendant’s voluntary officer’s action, hence negating liability. act, or by operation of law as when the defendant fails to assert his rights in a timely or F. State Tort Law versus Section proper manner. 1983 A tort is civilly wrongful conduct that causes The concept of venue is place oriented. It injury to the person or property of another, flows from the policy of the law to have in violation of a duty imposed by law. The

UPERVISORS cases tried in the locale where they arose, S great bulk of tort law is made in the courts where a party resides, or where another con- rather than in the legislature. In the states, the sideration makes it reasonable. Legislation usual legislative role is to provide the judicial establishes mandatory venue for some types FFICERS AND

O framework for tort litigation. Substantive tort of cases and preferred venue for others. But, law was inherited with the bulk of the English

AROLE within a court system, venue may be proper

/P common law, and courts have been refining in any court with subject matter jurisdiction and modernizing it since. In Texas, for exam- and jurisdiction over the defendant. Venue ple, no statute defines the elements of a civil ROBATION

P defects are almost always waived by the assault, although laws do identify the courts defendant’s failure to object promptly. authorized to hear assault cases and limit the SSUES FOR I An example of the interplay of these con- time within which the cases must be filed. Some specific torts, however, are legislatively EGAL cepts may help make them clear. Texas law L requires that felonies be prosecuted in the created, such as the wrongful death action. THER

O state district courts and in no other type of The federal pattern, in general, differs from court. Another law provides, in general, that the state pattern. Tortious conduct normally felonies be prosecuted in the county where must be defined by Congress in order to be the offense occurred. The first of these pro- IABILITIES AND

L actionable in federal courts. (When federal visions is jurisdictional, while the second IVIL district courts hear tort cases—automobile C deals with venue. negligence cases are the most common— 198 APPENDIX they apply state tort law in determining the means that an official’s act may be immune rights of the parties.) Section 1983 is, in from liability if the act is discretionary, but essence, one statutorily created federal tort. not if it was ministerial. In addition, the act In Section 1983 of 42 U.S. Code, Congress must have been within the scope of authori- A T authorized suits for damages (and other ty and performed in good faith. In Section HE relief) by any person deprived of rights 1983 cases, qualified immunity means that C OURT given by the Constitution or federal law. the officer is immune only if he or she acted

The action lies against any person (and sub- in good faith. Good faith, in turn, means S SE AND YSTEM state units of government)—usually a gov- that the officer did not violate a clearly ernment employee who acts under color of established statutory or constitutional right law, i.e., who has apparent official authority of which a reasonable person would have B

for his conduct. The frequency with which known. ASIC Section 1983 has been used has made it a L major concern for probation/parole officers. It is the policy of the law that each person EGAL should be held accountable for the conse- C

Because of the dual sovereignty doctrine, the quences of his or her acts. Immunity defens- ONCEPTS same act, such as the groundless arrest of a es conflict with this philosophical bent and, parolee, might be a state tort—such as false therefore, are not favored by the courts. This arrest/imprisonment—and a Section 1983 is evident in the hesitancy with which they violation. Two suits might result. Both of have extended absolute immunity to parole these potential sources of civil liability are boards that, in their releasing decisions at treated separately in previous chapters. least, exercise a most judgelike function. Individual probation/parole officers general- G. Absolute versus Qualified ly can establish only qualified immunity. Immunity Both absolute and qualified immunity are H. Basic Constitutional Rights defenses in civil litigation. They differ in Most of the cases (but particularly Section the degree of protection they afford and by 1983 cases) filed against probation/parole whom they may be asserted. The proper officers are based, directly or indirectly, on assertion of absolute immunity normally an alleged violation of a constitutional right. will derail a case at the beginning, while It is therefore helpful to be reminded of the qualified immunity may not. basic rights under the Bill of Rights and the 14th amendment. Legislators, judges, and prosecutors may assert the absolute immunity defense con- First Amendment cerning their official duties in those posi- 1. Freedom of religion. tions. While “absolute” technically may be a misnomer, it is close enough to be apt. 2. Freedom of speech. The officer seeking to claim absolute immu- 3. Freedom of the press. nity must establish his or her official position and that the action complained of was 4. Freedom of assembly. legislative, judicial, or prosecutorial, as the 5. Freedom to petition the government for case may be. redress of grievances.

“Qualified immunity” is the term applied Fourth Amendment to the protection that other public officials have. It has different meanings in state tort 1. Prohibition against unreasonable searches and Section 1983 cases. In state tort cases, it and seizures.

199 Fifth Amendment 5. Right to have compulsory process for 1. Right to a grand jury indictment for capi- obtaining witnesses in his favor. tal or otherwise infamous crime. 6. Right to have the assistance of counsel. 2. Right against double jeopardy. Eighth Amendment 3. Right against self-incrimination. 1. Prohibition against excessive bail. 4. Prohibition against the taking of life, liberty, or property without due process of 2. Prohibition against cruel and unusual law. punishment. 5. Right against the taking of private property 14th Amendment for public use without just compensation. 1. Right to privileges and immunities of Sixth Amendment citizens. 1. Right to a speedy and public trial. 2. Right to due process. 2. Right to an impartial jury. 3. Right to equal protection of the laws. 3. Right to be informed of the nature and The right to privacy is a basic constitutional cause of the accusation against him. right, but is not one of the rights explicitly 4. Right to be confronted with the witnesses mentioned in the Constitution. The Court, against him. however, has said that the right to privacy is implied from provisions of the 1st, 4th, 5th, 6th, 9th, and 14th amendments. UPERVISORS S FFICERS AND O AROLE /P ROBATION P SSUES FOR I EGAL L THER O IABILITIES AND L IVIL C

200 APPENDIX B Glossary of Legal Terms APPENDIX B

APPENDIX Abuse of discretion. No clear standard exists state law and that the misuse is possible only but, generally (1) no reasonable person would because the alleged wrongdoer is clothed take the view adopted by the decisionmaker, with the apparent authority of the state. The or (2) the decision was made for some arbi- term includes conduct actually authorized. B G

trary reason wholly unrelated to the statuto- Generally, anything a probation/parole offi- OF LOSSARY ry standard, or (3) the decision was made in cer does in the performance of assigned contradiction of applicable policy or statutes. duties, whether or not actually authorized, is done under color of law. L

Absolute immunity. The exemption enjoyed EGAL by certain government officials from liability Damages. Monetary compensation to the T in a lawsuit by virtue of the position they person who suffers loss or harm from an ERMS occupy. This means that if a civil suit is injury; a sum recoverable as amends for a brought, it will be dismissed by the court wrong to a person, his property, or his rights. without going into the merits of the plain- Damages (nominal, compensatory, or puni- tiff’s claim. Legislators, judges, and prose- tive) may be awarded to the plaintiff in state cutors enjoy absolute immunity for the tort or Section 1983 cases. decisions they make in the performance of their jobs. Defendant. The party against whom an action is brought; the party denying, opposing, resist- Administrative law. Rules and regulations ing, or contesting the action brought by the promulgated by governmental agencies plaintiff or the state. Probation/parole officers instead of by legislative bodies. Once prom- may become defendants in several kinds of ulgated, these rules and regulations have the cases arising out of improper task performance. force and effect of law and are binding on that agency, its officers, and those who deal De novo. The hearing of a case anew, afresh, with them, unless declared illegal or uncon- a second time. stitutional by the courts. Examples are rules and regulations issued by probation and Discretionary acts. Acts that require per- parole agencies. sonal choice and judgment, such as deciding on policies and practices. In general, the Civil cases. Cases brought to recover some consequences of discretionary acts cannot civil right or to obtain redress for some result in liability, unlike mandatory or minis- wrong. Tort actions are examples of civil terial acts. cases. All noncriminal cases are civil cases. Double jeopardy. A defense of constitutional Civil Rights Attorney’s Fees Awards Act of origin in a criminal prosecution claiming 1976. A federal law (sometimes known as that the defendant is being placed on trial Section 1988) that allows the court to award for a second time for the same offense for attorney’s fees to the prevailing party in some which he has previously been tried. The types of federal suits, particularly Section double jeopardy defense, however, does not 1983 cases. apply where one case is a criminal prosecution and the other prosecution is made suc- Civil rights cases. Another name given to cessively under state and federal jurisdiction, Section 1983 cases. Refer to Section 1983, or vice versa. below, for a more extended definition. Dual court system. The court system in the Color of law. Actions taken under “color of United States where there is one court sys- law” have the appearance but not the reality tem for federal cases and separate systems for of being legally justified. The term suggests state cases. the misuse of power possessed by virtue of 203 Due process. A courser of legal proceedings Jurisdiction. The authority of a court to hear according to those rules and principles estab- and decide a case. lished in our system of justice for the enforcement and protection of private rights. In the Legal liabilities. Refers to the various civil most simple of terms, fundamental fairness. and criminal proceedings to which a probation/parole officer may be exposed if he Exclusionary rule. A rule that prohibits the breaches any of his legal responsibilities use in criminal proceedings of evidence of through malfeasance (the commission any nature that was obtained in violation of of some lawful act), or nonfeasance (the the fourth amendment. The rule has been nonperformance of an act that should be extended to include any evidence subse- performed). quently discovered solely as the result of the illegally obtained evidence. Legal responsibilities. Duties and obligations imposed on probation/parole officers by Good faith defense. This term has different the United States Constitution, the state meanings in civil liability cases. In state tort constitution, federal laws, state laws, court cases, good faith means that the officer acted decisions, administrative rules, and agency with honest intentions in the belief that the guidelines that, if breached, give rise to action taken was appropriate. In Section legal liabilities. 1983 cases, however, good faith means that the officer did not violate a clearly established Ministerial act. An act that consists of the constitutional or statutory right of which a performance of a duty, in which the officer reasonable person would have known. has no choice but to carry out the act (e.g., the duty to provide a probationer/parolee a Governmental immunity. Exemption of gov- revocation hearing before revoking proba- ernment agencies or entities from liability tion/parole). Nonperformance of a ministe- for their governmental, but not their propri- rial act, unless in good faith, can lead to etary, functions. liability.

UPERVISORS “Hands off” doctrine. The doctrine adopted Negligence. The doing of that which a rea- S by the courts since the mid-1960s to entertain sonably prudent person would not have cases filed by prisoners and others in the crim- done, or the failure to do that which a rea-

FFICERS AND inal justice process seeking redress of griev- sonably prudent person would have done in O ances or monetary liability against government like or similar circumstances; failure to exer-

AROLE officials. The “hands on” doctrine has led to cise that degree of care and prudence that /P the “open door” era in corrections and the reasonably prudent persons would have exer- whole field of criminal justice litigation. cised in similar circumstances. Negligence ROBATION

P can lead to liability under state tort law or Immunity. A general term referring to exemp- Section 1983. tion from tort liability or other forms of SSUES FOR I lawsuits. Immunity can be governmental or Official immunity. Exemption of certain EGAL

L official; absolute, qualified, or quasi-judicial. classes of officials from tort liability or lawsuits because of the functions they perform. THER

O Indemnification. To make good the loss of another; in the case of a public employee Plaintiff. The person who initiates a civil law- who is sued, indemnification refers to pay- suit. In a state tort or a Section 1983 action, ments to the officer from the government to this is the person who alleges that he has been IABILITIES AND L fully or partially pay the damages assessed injured in some way or has rights violated by IVIL

C against him. the actions of the probation/parole officer.

204 APPENDIX Preponderance of evidence. That evidence Special condition. A condition of probation which, in the judgment of the jurors or or parole that is not imposed as a matter of judge, is entitled to the greatest weight, course on all probationers or parolees but is appears to be more credible, has greater designed to meet a special rehabilitative need. B G

force, and overcomes the opposing evidence. OF LOSSARY The side with the preponderance of evidence Stare Decisis. A doctrine of law that states wins a civil case. Preponderance denotes that when a court decides an issue of law, more than quantity. that decision will be followed by that court L

and by the courts under it in subsequent EGAL Probable cause. That amount of evidence, cases presenting similar circumstances. T supported by circumstances, that is suffi- ERMS ciently strong to warrant a cautious person Statutory law. Laws passed by legislatures to believe that an accused is guilty of the instead of by other bodies or agencies. offense with which he or she is charged. Tort. A wrong in which the action of one Qualified immunity. Exemption from liabili- person causes injury to the person or prop- ty under some circumstances. In state tort erty of another in violation of legal duty law, this means that an official’s act may be imposed by law. immune from liability if discretionary but not if ministerial. In addition, the act must Tortfeasor. A person who commits a tort; have been within the scope of authority and a wrongdoer. performed in good faith. In Section 1993 United States Courts of Appeals. The courts cases, qualified immunity means that the to which cases from the federal district officer is immune only if he or she acted in courts are appealed. There are 12 courts of good faith. appeals, each serving a designated “circuit” Quasi-judicial immunity. Officials who have of several states (except for the District of some functions of a judicial character and Columbia Circuit). From the courts of some executive duties may be immune from appeals, cases are appealed to the United liability for the former duties, but not for States Supreme Court. the latter. Example: Parole board members United States District Courts. The lowest have quasi-judicial immunity when making courts in the hierarchy of general jurisdic- decisions to release or not to release an tion federal courts. This is where federal inmate, but only qualified immunity when cases, including Section 1983 cases, are performing supervisory responsibilities. tried. There is a minimum of one district Respondeat superior. Refers to the responsi- court per state. bility of an employer for the acts or negli- United States Supreme Court. The highest gence of his employees or agents. Generally court in the United States, to which appeals not applicable when the government is the from federal or state courts may be taken. employer. Composed of one Chief Justice and eight Section 1983 case. A suit based on a federal associate justices who are appointed for life, law enacted in 1871 seeking various reme- its decisions are binding on both state and dies (among them monetary damages) from federal courts throughout the country. a government officer on the grounds that the Venue. The place where the case is to be heard. plaintiff’s federal or constitutional rights have been violated. Also referred to as “civil rights cases,” they are usually tried in federal courts. 205