Probation and Parole: Procedural Protection

The most fundamental point to be made regarding the legal status of the probationer and parolee while in the community is that he or she is a person who will have been deprived of certain civil rights by virtue of conviction of a crime. Precisely what rights are lost and for how long as a result of the conviction varies greatly from jurisdiction to jurisdiction.

As noted above, probationers and parolees suffer additional restrictions on their freedom as a result of conditions imposed by the sentencing judge or the parole authority. Once again, the discretion afforded the relevant authorities is enormous, although not without some legal limitations. The traditional view is that conditions will be upheld unless they are illegal, immoral, or impossible of performance (Cohen, 1969, p. 40); however, courts have been somewhat responsive to challenges regarding the breadth or ambiguity of conditions. For example, the probation condition of victim restitution has been frequently and successfully challenged where the judge failed to ascertain the offender's ability to pay, failed to limit restitution to proven damages, left ascertainment of the actual victim open, or caused the financial destruction of the offender (Higdon v. United States, 627 F.2d 893 (9th Cir. 1980)).

In determining the judge's or the parole authority's power with regard to probation or parole conditions, the starting point is the relevant statute. Thus, the federal probation law formerly provided for probation for such period of time and upon such terms and conditions as the court deems best.

Today, in an era of diminished judicial discretion in sentencing, the current federal probation law (18 U.S. Code § 3563) includes a list of "mandatory" conditions of probation, including the following: that the offender not commit further crime or use or possess illegal drugs; that he pay restitution and any fine that was imposed; and, in certain cases, that he enter a rehabilitation program or submit to random drug tests. However, the current law continues to list a wide variety of "discretionary" probation conditions that judges may chose to impose, provided such conditions are "reasonably related" to the offense and offender and to the traditional purposes of punishment, and are "reasonably necessary" to achieve those purposes. Thus, in addition to all of the traditional probation conditions previously mentioned, defendants may be required to support their dependents, "work conscientiously" (or avoid certain types of work), and refrain from "excessive use of alcohol" or the possession of any dangerous weapon.

The American Bar Association's 1970 Standards Relating to Probation, section 3.2(a), took the position that every sentence of probation should include a condition that the probationer lead a law-abiding life, that no other conditions should be required by statute, and that the sentencing judge should be free to fashion additional conditions to fit the circumstances of each case. This, of course, reflected an earlier view of the propriety of unregulated judicial discretion. (See also The Model Adult Community Corrections Act (American Bar Association, February 1992), which provides general guidance on the propriety, intensity, and content for what are termed community-based sanctions.)

Taking into account the so-called truth-insentencing laws that abolish traditional parole or diminish its availability, where parole in the form of discretionary release exists, the approach to parole conditions is similar to the rules governing probation as set out above. Typically, parole authorities impose certain "standard conditions" as well as "special conditions" related to the particular offense or offender.

Parole conditions are subject to challenge for their overbreadth and vagueness and as interfering with the individual's basic constitutional rights, or as having no relationship to the underlying offense. An example of a condition that was found to be impermissibly vague is that the individual "live honorably" (Norris v. State, 383 So.2d 691 (Fla. App. 1980)). Conditions that infringe upon First Amendment freedoms are among the most likely to be found void (Cohen, 1969, pp. 42–43). For example, a prior restraint on a parolee's desire to give a speech was held to be justified only by a showing that the speech entailed a clear and present danger of riot and disorder (Hyland v. Procunier, 311 F.Supp. 749 (N.D. Cal. 1970)).

The courts have also held that banishment from the state as a condition is void, either on constitutional grounds or on the basis of the pragmatic view that states which exile offenders will surely receive the exiles of other states (Cohen, 1969, p. 47). On the other hand, territorial restrictions on the movement of probationers or parolees are uniformly upheld.

Conditions may be imposed that are impossible of performance. For example, ordering a chronic alcoholic or a drug addict to refrain from drinking or drug use likely would be considered unlawful "impossible" conditions (Sweeney v. United States, 353 F.2d 10 (7th Cir. 1965)). However, requiring the individual to obtain or complete treatment, or to submit to reasonable tests in order to determine progress, would be upheld.

In the absence of legislative guidance, appellate courts have begun to construct some principles for assaying conditions challenged as unreasonable but not necessarily unconstitutional. An example would be a court's granting of probation to a person convicted of forgery and ordering that the probationer forego sexual intercourse with persons other than his wife. The above condition bears no reasonable relationship to the crime; it relates to conduct that is not inevitably criminal; and there is no apparent relationship between the condition and rehabilitation or future criminality. Such a condition would probably be found void (Wiggins v. State, 386 So.2d 46 (Fla. App. 1980)).

Conditions designed to shame offenders, socalled scarlet-letter conditions, are in vogue with some judges. The reported decisions disclose a probationer required to wear a T-shirt announcing he was on probation for theft; post a sign in the yard proclaiming the occupant a sex offender; place a bumper sticker on the car; wear a pink bracelet bearing the words "DUI CONVICT," or place an advertisement in the local paper with a mug shot and an apology.

Appellate courts continue to be reluctant to review such conditions even when offered proof that the probationer is harmed or put at risk by the condition; that First Amendment issues are created; and that little, if any, positive impact can be shown. Such conditions reflect the idiosyncratic whims of judges and should be reigned in by the legislature or appellate courts. (See Comment (1999) for a review of all these issues and citations to decisions.)

Convicted sex offenders are increasingly subjected to a number of intrusive conditions of supervised release. For example, such offenders are required to submit blood and saliva samples to a DNA bank, upheld in Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996). In Ohio, eligibility for parole requires successful completion of a sex offender program while in prison, and that has been upheld. (See Scott v. Ghee, 68 F.3d 475 (6th Cir. 1995); Schaffer v. Moore, 46 F.3d 43 (8th Cir. 1995)). Indeed, where mandated sex offender treatment could not be obtained because the offender could not find a way to pay for it, one court upheld revocation of probation, (State v. Morrow, 492 N.W. 2d 539 (Minn. App. 1992)).