Probation and Parole The Real Story

The American Probation and Parole association was first conceived in Houston, Texas during 1974, but did not find it’s place until August 19th 1975 in Louisville, Kentucky as part of the American Congress of Corrections.

The Original idea behind the Probation and Parole system was to help reintegrate persons under supervision back into society so that they may once again become productive members. It was designed to assist these persons with finding housing and employment, as well as re connection with the world outside of confinement. Within the last four decades this vision and shifted focus. It seems now that PNP has taken it upon themselves to team up with therapy providers and overrun the judicial system. Now they threaten people with putting them back into jail, add unjust and unconstitutional restrictions that have nothing to do with the crime committed in the first place. They overly restrict where you live, work, who you can associate with, even where you can go. Support for this is further provided by Judges giving the go ahead without even looking to see if the suggested added restrictions are JUST. PNP has began to focus more on victim, and general public outrage, rather than focusing on the member under supervision and helping them find a place back in the community. All this does is create more criminals, and instill the all too famous “institutionalized” mentality. It doesn’t help that people on supervision allow PNP officers to do these things without questioning or challenging them. It is understandable that they do not challenge them. They are running unchecked and haywire. It would take someone with a lot of financial backing and a band of great lawyers to challenge this injustice. Or we could send articles like this all the way to congress, and bring class action lawsuits against PNP as well as therapists and judges that simply pile on restrictions based on public outrage and hysteria.

Just exactly what are conditions that can be placed on a person on PNP? Well first of all those conditions have to be related to the crime that has put the person under the control of the judicial system. Recognize that it is not PNP that has the authority to put those restrictions on a person, because PNP is a member of the executive branch. Only the judicial branch has the authority to place restrictions on a person for a criminal activity. Those restrictions have to #1 relate directly to the crime and #2 aide in a person’s reintegration into society. Even the courts have to follow these guidelines.

The trial court is given wide discretion in establishing conditions of probation, and the order of the district judge providing for probation will be overturned only if it is abuse of discretion. ( United States v. Kahl, 583 F2d 1351 (CA5 Tex 1978). )  While the court can adopt terms and conditions of probation recommended to it by an administrative agency of government, The court cannot delegate it’s power to fix terms and conditions of probation. ( Whitehead v. United States, 155 F2d 460 (CA6 Tenn 1946). ) or to determine the parties aggrieved, the amounts to be paid, and the time and manner of payment. United States v. Mancuso, 444 F2d 691 (CA5 La 1971). ) (  United States v. Shelby, 573 F2d 971 (CA7 Wis 1978).    ) The court must orally give the conditions of probation,  ( Buhler v. Pescor, 63 F Supp 632 (DC Mo 1945). ) and when there is a discrepancy between conditions given orally and conditions given in writing, the oral statements control. (NOTE: what this means is that PNP cannot add to or change the requirements that were given by the judge at the time of sentencing.) (  United States v. Mesfin Haile Tulloch, 380 F3d 8 (CA1 Mass 2004).  ) If one condition of probation is void, it does not invalidate the sentence. (Watkins v. Merry, 106 F2d 360 (CA10 Okla 1939).) it should be noted that the court cannot lay blanket conditions that are recommended by the executive branch without first looking at the need for each of those conditions and spelling them out explicitly so that both the defendant and PNP know exactly the conditions of parole or probation.

Conditions: The 2nd Circuit, in U.S. v. Myers, ruled that if the liberty interest at stake in a decision involving a condition of release is fundamental, a deprivation of that liberty is “reasonably necessary” only if the deprivation is narrowly tailored to serve a compelling government interest. Courts of appeals have consistently required district courts to set forth factual findings to justify special probation conditions.Uni ted States v. Warren, 186 F3d 358 (CA3 NJ 1999).  It is not enough that the required findings are implicit in the record. The District Court is required to give reasons on the record for imposition of special conditions of supervised release.U.S. v. Hahn, 551 F3d 977 (10th Cir. 2008).  A district court’s failure to state its reasons for conditioning supervised release results at a minimum in a remand. U.S. v. Kravchuk, 335 F3d 1147 (10th Cir. 2003).  it should be noted here that most courts and for that matter, defense attorneys are not doing their job. They are simply taking the suggestions for blanket requirements from PNP and this needs to stop.

As is noted in this article ( ) the penalties have to relate to the underlying crime not to prior criminal actions and if those penalties/regulations are unrelated to the crime then they are illegally imposed, rather it comes from the court or from PNP.

It must also be pointed out that Probation or supervised release is considered custody for purposes of federal habeas corpus law, and therefore can be challenged under 28 U.S.C. § 2255. Probation officers are entitled to qualified immunity from probationers’ due process claims because probationers cannot claim a property interest in the statutory procedural protections. It also should be noted that, should a judge or PNP step outside their legal boundaries that like all public officials, they can be sued under a 42 U.S.C. §1983 civil rights action. For damages including pain and suffering. Remember the recent Supreme Court decision That basically said that any official of the government, who steps outside his legal boundaries, can bring about a suit against the organization that he represents. In other words, if the parole officer steps outside his boundaries in ordering something that is unrelated to the crime then not only he can be sued but all the organizations that he represents, all the way up through the state or federal government.

Restrictions: Some of the more common restrictions placed on people by PNP that in fact may be illegally placed on that person are Internet restrictions, mental health treatment or examinations , involuntary medication, cohabitation, reporting of significant romantic relationships, Alcohol and drug prohibition, alcohol and drug treatment and testing, employment, travel restrictions and other over all conditions placed on persons by PNP.

Reporting of significant romantic relationships: In the case of United States v. Reeves, the 2nd Circuit struck down a provision that the defendant notify the probation officer upon entering into a “significant romantic relationship” We easily conclude that people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a “significant romantic relationship.” What makes a relationship “romantic,” let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be “significant.” The history of romance is replete with precisely these blurred lines and misunderstandings. In other cases “this Court has long recognized that freedom of personal choice in matters of marriage, family life is one of the liberties protected by the Due Process Claus of the 14 Amendment.” Cleveland Board of Education vs. LaFleur 94 S. Ct. 791. “there does exist a privet realm of the family life which the state can not enter,” Prince vs. Mass. 64 S. Ct 438, that has been afforded both substantive and procedural protection. “We deal with the right of privacy older than the Bill of Rights older than our political parties, older that our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is the association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social protests. Yet is an association for as noble a purpose as any involved in our prior decision.” Griswold vs. Connecticut, 85 S. Ct. 1678.

Contact with your own children or associating with adults with children:  US versus Wolf Child    18 U.S.C. §§ 3583(d), 3553(a); Napulou, 593 F.3d at 1044.Under 18 U.S.C. § 3583(d), conditions of supervised release“must: (1) be reasonably related to the goals of deterrence,protection of the public, and/or defendant rehabilitation; (2) involve no greater deprivation of liberty than is reasonably necessary to achieve those goals; and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission.” Napulou, 593 F.3d at 1044. The government bears the burden of establishing the necessity of any condition of supervised release. Weber, 451 F.3d at 558.Additionally, when a supervised release condition targets a defendant’s right to associate with an intimate family member, the district court must “undertake an individualized review”(not PNP) on the record of the relationship between the defendant and the family member at issue to determine whether the restriction is necessary to accomplish the goals of deterrence, protection of the public, or rehabilitation. Napulou, 593 F.3d at 1047.  Miriam Aukerman, an attorney with the Western Michigan office of the American Civil Liberties Union, also could not cite a damages claim against state parole officers. But she noted that her office challenged a blanket policy keeping convicted sex offenders from their children in Michigan. The case (  )settled before a written opinion could be issued.

Alcohol and drug prohibition, treatment and testing: The court can impose a condition that a defendant not consume alcohol.(United States v. Miller, 549 F2d 105 (CA9 Cal 1976).  Courts can prohibit use of other legally-obtained intoxicants as well. (United States v. Schave, 186 F3d 839 (CA7 Ill 1999).  But the condition must be reasonably related to the crime for which the defendant plead guilty. (United States v. Stoural, 990 F2d 372 (CA8 Neb 1993).  The court can order outpatient drug abuse treatment and alcohol testing even if the defendant has no history of drug or alcohol abuse, if the defendant has attempted suicide by overdosing on medication and has a history of unstable behavior. (United States v. Carter, 159 F3d 397 (CA9 Cal 1998). Consuming 12 beers over a weekend does not constitute excessive use of alcohol as a matter of law. (  United States v. Stephenson, 928 F2d 728 (CA6 Tenn 1991).

Employment: Although courts have indicated unwillingness to uphold absolute occupational prohibitions that impose unnecessary hardship and have nothing to do with the offense, ( United States v. Cooper, 171 F3d 582 (CA8 Iowa 1999).  in some cases they have found that banning a defendant from a particular occupation (e.g. financial executive) is acceptable since all employment is not foreclosed by such a condition. ( United States v. Wittig, 474 F Supp 2d 1215 (DC Kan 2007).

Employment Third party notification: In the Peterson case, it was ruled that a bank larceny defendant with a prior incest conviction could not be ordered to reveal to employers his incest conviction, because “an occupational restriction must be based on the offense of conviction.” ( United States v. Peterson, 248 F3d 79 (CA2 NY 2001).

Internet restrictions: The United States Court of Appeals for the Second Circuit vacated a condition imposed on a child pornography offender that required that “The defendant shall consent to the installation of systems that will enable the Probation office or its designee to monitor and filter computer use on a regular or random basis and any computer owned or controlled by the defendant. The defendant shall consent to unannounced examinations of any computer equipment owned or controlled by the defendant which may result in the retrieval and copying of all data from the computer and any internal or external peripherals and may involve removal of such equipment for the purpose of conducting a more thorough investigation,” on the grounds that it was overbroad. ( U.S. v. Lifshitz, 369 F3d 173 (2nd Cir. 2004).

The court ruled in U.S. v. Peterson: ( United States v. Peterson, 248 F3d 79 (CA2 NY 2001).
“The computer/Internet restrictions prohibit the defendant outright from possessing or using a computer that includes either a modem, an Internet account, a mass storage device, or a writable or re-writable CD Rom. Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering. The fact that a computer with Internet access offers the possibility of abusive use for illegitimate purposes does not, at least in this case, justify so broad a prohibition… Although a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones. Nor would defendant’s proclivity toward pornography justify a ban on all books, magazines, and newspapers.

Mental health treatment or examination: Court-ordered mental health treatment as a condition of probation has been upheld when the case had taken an emotional toll on the defendant and the defendant said the conviction felt “like the end of her life as she knows it” United States v. Iversen, 90 F3d 1340 (CA8 SD 1996).  or when the defendant has a history of major depression, refusal to take antidepressant s, and dangerous conduct such as taking a drug dealer he suspected of cheating his wife on a marijuana deal to a police station at gunpoint; United States v. Cooper, 171 F3d 582 (CA8 Iowa 1999). or when the defendant has abused his own disabled daughter. But the court cannot delegate to the probation officer the authority to decide whether the defendant shall participate in a mental health program. United States v. Peterson, 248 F3d 79 (CA2 NY 2001). It also must be noted that before a person can be declared mentally ill and in need of mental health treatment programs, that there must be a separate hearing, where as the events must be presented to the person’s condition at the time of the hearing to designate that person ls at the time of the hearing mentally ill. According to the US Supreme court in Vitck vs Jones 100 S.Ct 125, ‘While a conviction and sentence extinguish an individual’s right to freedom from confinement for the term of the sentence, they do not authorize the state to classify him as mentally ill and subject him to involuntary psychiatric treatment without affording additional due process protections’. The 4th and 5th Amendments were described in Boyd v. United States, 6 S. Ct. 524, 532, as protection against all governmental invasions “of the sanctity of a man’s home and the privacy’s of life.”

In Stanley v. Georgia, 89 S. Ct. 1243, 1248 ” Our whole constitutional heritage rebels at the thought of giving government power to control men’s minds”. “because of the current curtailment of liberty and the moral stigma. People are entitled to due process safeguards of proof beyond reasonable doubt before being labeled as mentally ill” people v Feagley 535 P2D 373. “the court, must have clear and convincing evidence to find that a person is mentally ill or that they are a danger to themselves or others and not even the court can presume to make a judgment without that evidence.” State vv. Waites 71 Or. APP 366 “when mental health patient is intentionally subjected to harsher conditions in order to determine them from maintaining a course of conduct. The fact that it is done in the name of psychiatric treatment does not keep it from being intentional punishment” Green versus Baron 662 federal supplement 1378. “Patient’s right to be a grandfather… prohibiting him from visiting with his grandchildren was a clear restriction of his liberty” Cameron v Tomes 783 federal supplement 1511 “any “aversive stimuli” constitute cruel and unusual punishment… “behavior modification by aversive stimuli is highly questionable technique “,,, “and that its use is really punishment worse than the control beating” Knecht v. Gillman 488 F2D 1136.

Involuntary medication: United States v. Cope, 527 F3d 944 (9th Cir. 2008)  was a case in which the U.S. Court of Appeals for the 9th Circuit held that a need for heightened findings applies to conditions of supervised release requiring the defendant “to take ‘any’ or ‘all’ medication prescribed by a medical or other treatment personnel.” The 9th Circuit has ruled that a condition of supervised release “compelling a person to take antipsychotic medication is an especially grave infringement of liberty,” so much so that “a thorough inquiry is required before a court” may include it as a special condition of release. U.S. v. Williams, 356 F3d 1045 (9th Cir. 2004).

Cohabitation: In U.S. v. Woods, a judge ruled in a crack cocaine case that during the first five years after her release, the defendant couldn’t live with anyone other than a relative or spouse. The judge said this condition was needed to impose “stability” in her home. The U.S. Court of Appeals for the Fifth Circuit struck down the condition, saying it infringed “her constitutional right to liberty.” (U.S. v. Briane Nicole Woods, 07-51491 (5th Cir. October 28, 2008).  (Efrati, Amir (August 13, 2009), Courts Face Growing Battle Over Limits on Ex-Convicts, The Wall Street Journal )

Travel restrictions: Even in a case in which the defendant was convicted of bringing large amounts of illegal drugs into the country, and the appellate court agreed that the defendant should not return to Israel, where his troubles began, it was ruled that the District Court must make findings in support of a restriction against traveling out of the U.S. based on compelling evidence. United States v. Warren, 186 F3d 358 (CA3 NJ 1999). The appellate court found that the superior court’s blanket travel restriction failed any measure of particularized consideration for Smith because it was unrelated to his crime and because mere transit across county boundaries did not foretell any danger to the community or potential criminal behavior.  Holding that there was no reasonable relationship between Smith’s crime and the probation restriction, the Court of Appeal ordered the trial court to either fashion a less restrictive condition or remove the travel restriction altogether. See: People v. Smith, 152 Cal.App.4th 1245, 62 Cal.Rptr.3d 316 (Cal.App. 2 Dist., 2007).

Penile plethysmograph test: In United States v. Powers the court excluded the penile plethysmograph test because it failed to qualify under Daubert’s scientific validity prong for two reasons: the scientific literature does not regard the test as a valid diagnostic tool, and “a vast majority of incest offenders who do not admit their guilt, such as Powers, show a normal reaction to the test. The Government argues that such false negatives render the test unreliable.”United States v. Powers, 59 F.3d 1460 (4th Cir. 1995)
In State of North Carolina v. Spencer, the court reviewed the literature and case law and concluded that penile plethysmography was scientifically unreliable: North Carolina v. Spencer, 459 S.E.2d 812, 815 (N.C. Ct. App. 1995)
United States v. Weber, 2006 U.S. App. LEXIS 15111 (9th Cir. 2006). The requirement that Weber submit to plethysmograph testing as part of his sex offender treatment program was imposed without the necessary evidence record, justification, and findings we now hold are required.   Accordingly, we vacate the condition and remand for further proceedings consistent with this opinion. VACATED and REMANDED.

Judge Berzon’s excellent opinion is deserving of support. I would, however, go beyond it to hold the Orwellian procedure at issue to be always a violation of the personal dignity of which prisoners are not deprived. The procedure violates a prisoner’s bodily integrity by affecting his genitals. The procedure violates a prisoner’s mental integrity by intruding images into his brain. The procedure violates a prisoner’s moral integrity by requiring him to masturbate. By committing a crime and being convicted of it, a person does not cease to be a person. A prisoner is not a mere tool of the state to be manipulated by it to achieve the purposes the law has determined appropriate in punishment. The prisoner retains his humanity and therefore has purposes transcending those of the state. A prisoner, for example, cannot be forced into prostitution to aid the state in securing evidence. A prisoner, for example, cannot be made to perjure himself in order to assist a prosecution. Similarly, a prisoner should not be compelled to stimulate himself sexually in order for the government to get a sense of his current proclivities. There is a line at which the government must stop. Penile plethysmography testing crosses it.

There is not much case law on this, quite simply because when PNP are called on these issues they have a tendency to try to settle them out of court and that way they do not have to admit wrongdoing across the board, which allows them to continue to put restrictive requirements on others in the same situation. A case in point was brought to the court by Miriam Aukerman, an attorney with the Western Michigan office of the American Civil Liberties Union, also could not cite a damages claim against state parole officers. But she noted that her office challenged a blanket policy keeping convicted sex offenders from their children in Michigan. The case ( )the case was settled before a written opinion could be issued. Thereby lessening only the restrictions on a single person. All others with the similar restrictions would have to go through the courts again.

Another unjust, unconstitutional problem that is faced by almost everyone under supervision is the financial aspect. Most if not all states charge for therapy treatment, Probation, Polygraphs, and some states charge for your registration. These fees are to be waived if the person under supervision can show that these cause financial hardship (Most times Financial hardship can be proven if the person under supervision has court ordered child support). This is a problem that must be addressed because every PNP officer I have seen will tell you that they will not waive your fees or do the paperwork required for the waiver, some will even try to tell you that the state you are in does not waive fees at all.

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