DOCUMRPIT ItitSUMI ED 032 409 VT 008 897 By-Cohen. Fred The Legal Challenge to Corrections: Implications for Manpowerand Training. Joint Commission on Correctional Manpower andTraining, Washington. DEC. Pub Date Mar 69 Note-116p- Available from.-Joint Commission on Correctional Manpower andTracing. 1522 K Street, N.W., Washington. DEC. 20005 (SI-00) EDRS Price MF-SO.50 HC-S5.90 Descriptors -*CivA Rights. *Correctional. Rehabilitation,Corrective Institutions, Court Litigation. Criminals, Delinquents. Juvenil, Courts, Legal Responsibility,Parole Officers, *Prisoners, Probationary Period. Probation Officers _ Identifiers-Joint Commission Correctional Manpower &Training Workers in the field of corrections willfind in this consultant's paperin examination of: (1) legal changes outsidethe area of the criminal process whichhave implications for corrections, (2) legal changeswithin the area of the criminal process. and (3) legal norms as a backgroundfor analyzing problems in the areaof corrections. Intended as a readyreference. and as training material, the paper is elaborately documented. The five major sections concern:(1) the broad context of legal change in areas of governmental activity,(2) sentencing. (3) probation and parole, (4) imprisonment and the lossand restoration of civil riGh. ts, and(5) the juvenile correctional process. There is apressing need for a modelcode of correctional procedure, and possibleapproaches to and some of thedifficulties involved in the drafting of such a code arediscussed. A summary of the document is available as VT 008 898. (JO A JOINTV1008897 COMMISSION-1= r4,4. ON CORRECTIONAL MANPOWER AND TRAINING CONSULTANT'S, ah PAPERE0032.409MARCH 1969 calcoDEra The Joint Commissionon Correctional Manpower and Training, incorporated in theDistrict of Columbia, consists of nearly a hundred national,international, and regional organizations andpublic agencies which have joined together to attackone of the serious social problems of our day: .Howto secure enough trained Men and women to bring aboutthe rehabilitation of offenders through our correctionalsystems and thus prevent further delinquency and crime. Recognizing the importance of thisproblem, the Congress in 1965 passed the CorrectionalRehabilita- tion Study Act, which authorizedgrants through the Social and Rehabilitation Servicefor a broad study of correctional- manpower and training. TheJoint Com- mission is funded under this Actand through grants from private foundations, organizations,and individuals. Commission publications available: Differences That Make the Difference,papers of a seininar on implications- of ailtuialdifferences for corrections. Angtist.1967.. .Targets for In-Service Training, papers ofa seminar on in-service training. -October -1967.68. pp. 7 - ;Research iri .Corredional Rehabilitation, report ofa .sentinar on research in correctionalrehabilitation. December -1967. 70 pp. The Public-Looks-at *Crime andCorrections, report of a public opinion survey. February 1968.28.pp. The Fulure of the Juvenile Court: Implicationsfor _ .Correctional' Manpower and- Training,consultants' paper. June -1968. 67 pp. Offenders as a Correctional ManpowerResource, Mimi of a seminar on the .use of offenders incorrec- tions. July 1968. 1031ip. Criminology and -Cqrrections'Programs:A Study of :the Issues,report- of a- seminar. July 1968. 101 pp. Corrections 1968: 4 Climate .for Change,report of an attitude survey. ,August 1968. 45 pp. The' University and Corrections:Potential for Col- laborative Relationships, consultant'spaper. January 1969. 78 pp. 'Volunteers Look at Corrections, report ofan atti- tude survey. February 1969. 30 pp. The Legal Challenge to Corrections: Implications for Manpower and Training, consultant'spaper. March 1969. 107 pp. , s . I THE LEGAL CHALLENGE TO CORRECTIONS: IMPLICATIONS FOR MANPOWER AND TRAINING Fred Cohen Professor of Law University of Texas U.S. DEPARTMENT OF HEALTH, EDUCATION & WELFARE OFFICE OF EDUCATION THIS DOCUMENT HAS BEEN REPRODUCED EXACTLY AS RECEIVED FROM THE PERSON OP ORGANIZATION ORIGINATING IT.POINTS OF VIEW OR OPINIONS STATED DO NOT NECESSARILY REPRESENT OFFICIAL OFFICE OF EDUCATION POSITION OR POLICY. t I! 1 A consultant's paper prepared for the Joint Commission on Correctional Manpower and Training R Ilk 1522 K Street NM. Washington, D. C. 20005 , March 1969 i FOREWORD It will come as a shock to many if not mostprobation officers, prison keepers, and parole officials that they are notendowed by law and the accouterments of their office withunfettered power to make ezcisions concerning their charges. It was to make thisfact of life abundantly clear and stake out the boundaries of the legalprerogatives of their clientele that the Commission requested ProfessorFred Cohen of the University of Texas Law School to prepare a paperhe has called "The Legal Challenge to Corrections." That is a good tide, for the documentdevelops in a logical and scholarly way how the courts are insisting thatrepresentation by counsel, due process, access to the courts, andfundamental fairness doctrines apply to prisoners, probationers, and paroleessubstantially as they do to free men. That constitutes a challenge to manytime-honored practices of correctional workers, which can be met onlythrough developing a staff sufficient in number and imaginative enough inapproach to deal ob- jectively and patiently with their day-to-day tasks. The paper, couched in legal terms andelaborately documented, will not prove easy reading. Butif the reader becomes sufficientlyacquainted with its scope, it will provide a ready referencethat can prevent unsound practices and perhaps save embarrassing court appearances.It will help a probation officer decide whether he can legallyimpose a condition that the probationer shall not engage in a protest movementand then send him to prison if he pickets a political rally.A prison warden can save his time and improve his image if he looks atthe discussion on prepara- tion of habeas corpus writs and foregoeshis urge to throw a prisoner in "the hole" for helping a cellmate prepare amotion for a new trial. Professor Cohen's expertise and the value ofhis judgments are illustrated by his prediction that the U. S. SupremeCourt would uphold the right of a prisoner to utilize the legal servicesof one of his fellows. As the paper went to press, theCourt overruled a decision by a federal courtof appealsJohnson v. Averyholding that a warden could forbidand punish such collaboration. At the start, Professor Cohen touches onthe sentencing process and its impact on the prisoner's future adjustment.He discusses Whether the r. i benevolent purpose doctrineunderlying a grant ofprobation can be relied upon as an excuse forinvading the privacy of aprobationer and the extraction and subsequent useof information that isincriminatory. He men explores the muddy waters onwhich parole revocationhearings remain afloat. That these as nowconducted may soon founderis fore- shadowed by the cases discussed.There is also a mostuseful analysis of in ordering a prisoner toclip his long hair, how far a warden can go periods in censor his mail,deny him an attorney, or use teargas or long solitary confinement onbread and water asdisciplinary measures. A final chapter, prepared byProfessor Robe= Dawsonof the University of controversy Texas Law School, plungesmanfully into the juvenile court and the extent to whichthe protectionsguaranteed by the due process and the fundamentalfairness doctrines apply tojuveniles. this consultant's paperlike others it has The Commission believes with pleasure and a published will be useful astraining material. So it is have cooperated in the desire to be of service tothe many people who that this paper ispresented. It does notvouch work of the Commission implications, for all the materialin the document orendorse all of its but does offer it as avaluable tool for workersin the field of corrections. proof also that there is apressing need for a Model The paper provides insight into the difficulties Code of CorrectionalProcedure and gives involved in the draftingof a compendium ofthis type. Credit for this importantcontribution goes not only toProfessor collaborators at theUniversity of Texas butalso to many Cohen and his particularly members of theCommission's Washingtonstaff including Edward T. Magoffinand Jo Wallach. JAMES V. BENNETF President Joint Commission onCorrectional Manpower and Training AUTHOR'S PREFACE As more is learned about howour correctional systems operate, it becomes increasingly clear that we cannot long tolerate the absenceof the rule of law in an area where government officials dailyregulate the lives of hundreds of thousands of individuals. Althoughthe need for change seems urgent, surprisingly little has been writtenabout the law and corrections and surprisingly little is known about thearea by cor- rectional officials and lawyers. This work was prepared with several objectives in view:to examine in some detail legal changes thatare occurring outside the area of the criminal process but which have implications for corrections;to explore legal changes within the criminalprocess; and to examine legal norms in the abstract as an introduction toa more specific analysis of problems in the areas of sentencing, probation and parole, prisoners' rights,and loss and restoration of civil rights. This publication is somewhat heavily documented in orderto permit it to be used as a resource document. The disproportionately long intro- duction was designed to point up the interrelatedness of correctional