Probation and Parole: Procedural Protection

The differences between probation and parole are not very important in the analysis of the procedural protections afforded probationers and parolees. The procedural issues as to each may be conveniently analyzed within three categories: the decision to grant or deny probation or parole; supervisory issues particularly as they relate to the enforcement of the conditions of release; and the decision to revoke. Except in jurisdictions with legally binding sentencing guidelines, or parole guidelines, the decision to grant or withhold probation or parole is a highly discretionary one, with the candidate possessing few legal rights. While a number of laws will categorically deny probation or parole, usually based on the severity of the underlying offense, no law will require that probation or traditional parole be granted.

Once probation or parole is granted, however, the recipient receives a form of conditional liberty with important legal consequences both as to supervision in the community and to any effort to terminate—or revoke—this conditional freedom. One of the most significant developments in this area is the constitutionalizing of the revocation process and, to a much lesser extent, of the granting and community supervision process. In this connection, decisions of the U.S. Supreme Court and the lower federal courts will be discussed here; to complete the legal picture, statutory law and administrative regulations would have to be examined.

The dichotomy between the legal rights associated with the granting of probation or parole and termination of the grant is a general phenomenon that is pervasive in law. That is, persons who, for example, seek a license, employment, or entry to a university while not without rights, especially those related to antidiscrimination, have fewer rights than those faced with loss of a license, employment, or student status. Granting-type decisions, then, concede far more discretion to official decisionmakers than termination decisions.

Lawyers are fond of problem solving by using analogical reasoning. For example, they note that the revocation of parole requires due process protection while a prison-to-prison transfer requires none. When an inmate is placed in a work release program and allowed to live at home or in a half-way house part of the time, if the release status is to be terminated, courts will ask if the program is more like parole or more like a prison-to-prison transfer. The closer the analogy to parole, the greater the chance for winning procedural safeguards.