CIVIL

LIABILITIES

Third Edition

DEPARTMENT OF JUSTICE

NATIONAL INSTITUTE OF CORRECTIONS

U.S. Department of Justice

National Institute of Corrections

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

Ph.D. Candidate

Sam Houston State University

Gene Bonham, Jr.

Ph.D. Candidate

Sam Houston State University

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

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)

Lance Hignite

Ph.D. Candidate 

Sam Houston State University

Todd Jermstad

Legal Counsel

Community Supervision and 

Corrections Department 

Bell County, Texas
PREFACE TO THE THIRD EDITION 

The first edition of this monograph was published in March 1982; the second edition came

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

iv

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS
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.

v

CONTENTS

CONTENTS

PREFACE TO THE THIRD EDITION .................................................................................iii

ABOUT THE AUTHORS ........................................................................................................v

INTRODUCTION...................................................................................................................1

CHAPTER 1 An Overview of State and Federal Legal Liabilities.....................................3

CHAPTER 2 Civil Liability Under State Law: State Tort Cases .....................................15

CHAPTER 3 Civil Liability Under Federal Law: Section 1983 Cases ............................29

CHAPTER 4 Legal Representation, Attorneys’ Fees, and Indemnification.....................41

CHAPTER 5 Presentence/Preparole Investigations and Reports.....................................53

CHAPTER 6 Liability of Parole Board Members for Release or Nonrelease...................69

CHAPTER 7 Conditions, Modifications, and Changes in Status...................................83

CHAPTER 8 Supervision.............................................................................................109

CHAPTER 9 Revocation .............................................................................................139

CHAPTER 10 Liabilities of Supervisors.........................................................................163

CHAPTER 11 Questions, Specific Concerns, and General Advice.................................183

APPENDIX A The Court System and Basic Legal Concepts .........................................191

APPENDIX B Glossary of Legal Terms..........................................................................201

1

INTRODUCTION 

We live in an increasingly litigious society. One result is more lawsuits against government

agencies 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.
2

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

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.
CHAPTER 1

CHAPTER 1

An Overview of State and Federal

Legal Liabilities

INTRODUCTION

I. UNDER STATE LAW

A. Civil Liability Under State Tort Law

1. State Tort Law

2. State Civil Rights Laws

B. Criminal Liability Under State Law

1. State Penal Code Provisions Aimed Specifically at Public Officers

2. Regular Penal Code Provisions Punishing Criminal Acts

II. UNDER FEDERAL LAW

A. Civil Liabilities

1. Title 42 of the U.S. Code, Section 1983—Civil Action for Deprivation

of Rights

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. Title 18 of the U.S. Code, Section 242—Deprivation of Rights Under 

Color of Law

2. Title 18 of the U.S. Code, Section 241—Conspiracy Against Rights

3. Title 18 of the U.S. Code, Section 245—Federally Protected Activities

III. MAY AN OFFICER BE HELD LIABLE UNDER ALL OF 

THE ABOVE LAWS? YES.
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
INTRODUCTION

The array of legal liabilities to which

probation/parole officers may be

exposed are many and varied. They range

from state to federal laws and from civil to

criminal laws. For purposes of an overview,

legal liabilities may be classified as shown in

table 1–1.

Note that in addition, the officer may be

subject to agency administrative disciplinary

procedure that can result in transfer, suspension, demotion, dismissal, or other forms

of sanction. Disciplinary procedures are

defined by state law or agency policy.

The above legal liabilities apply to all public

officers and not just to probation/parole officers. Police officers, jailers, prison officials,

juvenile officers, and just about any officer in

the criminal justice system may be held liable

for any or all of the above provisions based

on a single act. For example, assume that a

parole officer unjustifiably uses excessive force

on a parolee. Conceivably, he or she may be

liable under all of the above provisions. He or

she may be liable for conspiracy if he or she

acted with another to deprive the parolee of

his civil rights, as well as for the act itself,

which constitutes the deprivation. The same

parole officer may be prosecuted criminally

and civilly under federal law and then be held

criminally and civilly liable under state law

for the same act. The double jeopardy defense

cannot exempt him from multiple liabilities

because double jeopardy applies only in criminal (not civil) cases, and only when two

criminal prosecutions are made for the same

offense by the same jurisdiction. Criminal

prosecution under state and then under federal law for the same act is possible. If this is

5

CHAPTER

1

AN

OVERVIEW OF

STATE AND

FEDERAL

LEGAL

LIABILITIES

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
6CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

done, it indicates that the second prosecuting authority believes that justice was not

obtained in the first prosecution. 

All of the above types of liability are discussed briefly in this chapter. As indicated,

liability can be classified according to federal

or state law.

■■■

I. UNDER STATE LAW There are two basic types of liability

under state law: civil and criminal.

A. Civil Liability Under State

Tort Law

1. State Tort Law

This liability is more fully discussed in Chapter 2 (State Tort Cases). For purposes of this

overview section, the following information

should suffice.

Tort is defined as “a wrong in which the

action of one person causes injury to the person or property of another in violation of

a legal duty imposed by law.” Torts may

involve a wrongdoing against a person, such

as assault, battery, false arrest, false imprisonment, invasion of privacy, libel, slander,

wrongful death, and malicious prosecution;

or against property, such as trespass. A tort

may be intentional (acts based on the intent

of the actor to cause a certain event or harm)

or caused by negligence. Probation/parole

officers may therefore be held liable for a tortious act that causes damage to the person or

property of another. Note that Section 1983

actions, federal cases, are sometimes referred

to as “tort cases,” but the reference is to federal rather than state torts.

2. State Civil Rights Laws 

Many states have passed civil rights laws of

their own, either replicating the compendium

of federal laws that have been enacted or

devising new categories of protected rights.

For example, the Federal Civil Rights Act of

1964 prohibits discrimination on the basis

of race, religion, color, national origin, sex,

and pregnancy. These laws are enforceable

by the federal government, but they may

also be enforceable by the state if enacted as

state statutes. The penalty or punishment

imposed, therefore, is on the state level, and

enforcement of the law may be done by the

state.

B. Criminal Liability Under

State Law

1. State Penal Code Provisions Aimed

Specifically at Public Officers 

State criminal liability can come under a

provision of the state penal code specifically

designed for public officers. For example,

Section 39.03 of the Texas Penal Code contains a provision on “Official Oppression”

that states that a public servant acting under

color of his office or employment commits

an offense if he: 

a. Intentionally subjects another to mistreatment or to arrest, detention, search,

seizure, dispossession, assessment, or lien

that he knows is unlawful; or

b. Intentionally denies or impedes another

in the exercise of enjoyment of any right,

privilege, power, or immunity knowing

his conduct is unlawful; or

c. Intentionally subjects another to sexual

harassment.

A questionnaire sent to state attorneys general and probation/parole agency legal counsel asked if their states had statutes providing

for criminal liability for probation, parole,

and public officers in general. The results

show that only a few states have statutes pertaining to liability for probation/parole officers specifically, 8 percent in both cases, but

84 percent of the states have statutes concerning the criminal liability of public officers in general.
7

CHAPTER

1

AN

OVERVIEW OF

STATE AND

FEDERAL

LEGAL

LIABILITIES

2. Regular Penal Code Provisions

Punishing Criminal Acts

In addition to specific provisions, probation/parole officers may also be liable just

like any other person under the provisions

of the state criminal laws. Under Texas

criminal code, for example, they may be

liable for murder, manslaughter, serious

physical injury, etc., done to any probationer

or parolee.

■■■

II. UNDER FEDERAL

LAW

A. Civil Liabilities

1. Title 42 of the U.S. Code, Section

1983—Civil Action for Deprivation

of Rights

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or

the District of Columbia, subjects, or

causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured in action at law, suit in equity,

or other proper proceeding for redress,

except that in any action brought

against a judicial officer for an act or

omission taken in such officer’s judicial

capacity, injunctive relief shall not be

granted unless a declaratory decree

was violated or declaratory relief was

unavailable. For the purpose of this section, any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of the

District of Columbia.

This section is discussed separately in

Chapter 3 because the overwhelming number of current cases is filed under this section. Refer to that chapter for an exhaustive

discussion of liability under federal law.

2. Title 42 of the U.S. Code, Section

1985—Conspiracy to Interfere With

Civil Rights

Section 1985(3) provides a civil remedy

against any two or more persons who:

a. Conspire to deprive a plaintiff of the

equal protection of the law or equal privileges and immunities under the law, with 

b. A purposeful intent to deny equal protection of the law,

c. When defendants act under color of state

law, and

d. The acts in furtherance of the conspiracy

injure the plaintiff in his person or property, or deprive him of having and exercising any right or privilege of a citizen of

the United States.

This section, passed by the United States

Congress in 1861, provides for civil damages

to be awarded to any individual who can

show that two or more persons conspired to

deprive him of civil rights. Note that a probation/parole officer may therefore be held

civilly liable not only for actually depriving

a person of his civil rights (under Section

1983), but also for conspiring to deprive

that person of his civil rights (under Section

1985). The two acts are separate and distinct

and therefore may be punished separately.

Under this section, it must be shown that

the officers got together and actually agreed

to commit the act, although no exact statement of a common goal need be proven. In

most cases, the act is felonious in nature (as

opposed to a misdemeanor) and is aimed at

depriving the plaintiff of his civil rights. The

plaintiff must also be able to prove that the

officers purposely intended to deprive him

of equal protection that is guaranteed him

by law. This section, however, is seldom used

against public officers because the act of

conspiracy is often difficult to prove except

through the testimony of coconspirators.
8CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

Moreover, it is limited to situations in which

the objective of the conspiracy is invidious

discrimination, which is difficult to prove in

court. It is difficult for a plaintiff to establish

in a trial that the probation/parole officer’s

action was discriminatory based on sex, race,

or national origin.

3. Title 42 of the U.S. Code, Section

1981—Equal Rights Under the Law

a. All persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and

enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit

of all laws and proceedings for the security

of persons and property as is enjoyed by

white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no

other.

b. For purposes of this section, the term

“make and enforce contracts” includes the

making, performance, modification, and

termination of contracts, and the enjoyment of all benefits, privileges, terms and

conditions of the contractual relationship.

c. The rights protected by this section are

protected against impairment by nongovernmental discrimination and impairment under color of State law.

This section was passed in 1870, a year earlier than Section 1983. Until recently, the

plaintiff had to show that he was discriminated against because of his race, thus limiting the number of potential plaintiffs.

Section 1981 has been widely used in

employment and housing discrimination

cases (under its contracts and equal benefits

provisions). However, currently the equal

punishments provision is of greatest significance for probation and parole authorities.1

B. Criminal Liabilities

1. Title 18 of the U.S. Code, Section 242—

Deprivation of Rights Under Color of Law

Whoever, under color of any law,

statute, ordinance, regulation, or custom, willfully subjects any person of

any State, Territory, Commonwealth,

Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the

Constitution or laws of the United

States, or to different punishments,

pains, or penalties on account of such

person being an alien, or by reason of

his color, or race than are prescribed

for the punishment of citizens, shall be

fined under this title or imprisoned not

more than one year, or both; and if

bodily injury results from the acts committed in violation of this section or if

such acts include the use, attempted

use, or threatened use of a dangerous

weapon, explosives, or fire, shall be

fined under this title or imprisoned not

more than ten years, or both; and if

death results from the acts committed

in violation of this section or if such

acts include kidnapping or an attempt

to kidnap, aggravated sexual abuse, or

an attempt to commit aggravated sexual

abuse, or an attempt to kill, shall be

fined under this title, or imprisoned for

any term of years or for life, or both, or

may be sentenced to death.

This section provides for criminal action

against any officer who actually deprives

another of his civil rights. An essential element of this section is for the government to

be able to show that the officer, acting “under

color of any law,” did actually commit an act

that amounted to the deprivation of one’s

civil rights. Essential elements of Section 242

are the following: (a) the defendant must

have been acting under color of law; (b) a

deprivation of any right secured by federal

laws and the United States Constitution; and

(c) specific intent on the part of the defendant to deprive the victim of rights.
2. Title 18 of the U.S. Code, Section 241—

Conspiracy Against Rights

If two or more persons conspire to

injure, oppress, threaten, or intimidate

any person in any State, Territory,

Commonwealth, Possession, or District in the free exercise or enjoyment

of any right or privilege secured to

him by the Constitution or laws of the

United States, or because of his having

exercised the same; or

If two or more persons go in disguise

on the highway, or on the premises of

another, with the intent to prevent or

hinder his free exercise or enjoyment of

any right or privilege so secured—They

shall be fined under this title or imprisoned not more than ten years, or both;

and if death results from the acts committed in violation of this section or

if such acts include kidnapping or an

attempt to kidnap, aggravated sexual

abuse or an attempt to commit aggravated sexual abuse, or an attempt to

kill, they shall be fined under this title

or imprisoned for any term of years or

for life, or both, or may be sentenced

to death.

As interpreted by the courts, this section

requires the following: (1) the existence of

a conspiracy whose purpose is to injure,

oppress, threaten, or intimidate; (2) one or

more of the intended victims must be a

United States citizen; and (3) the conspiracy

must be directed at the free exercise or

enjoyment by such a citizen of any right or

privilege under federal laws or the United

States Constitution.

The main distinction between Section 242

and Section 241 is that Section 242 punishes the act itself, whereas Section 241 punishes the conspiracy to commit the act.

Inasmuch as conspiracy, by definition, needs

at least two participants, Section 241 cannot

be committed by a person acting alone.

Moreover, while Section 242 requires the

officer to be acting “under the color of law,”

there is no such requirement under Section

241; hence, a private person can commit

Section 241. 

3. Title 18 of the U.S. Code, Section 245—

Federally Protected Activities 

This section is aimed at private individuals

but is also applicable to public officers who

forcibly interfere with such federally protected activities as:

■ Voting or running for an elective office.

■ Participating in government-administered

programs.

■ Applying for or enjoying the benefits of

federal employment.

■ Serving as juror in a federal court.

■ Participating in any program receiving

federal financial assistance.

Violations of Section 245 carry a fine or

imprisonment of not more than 1 year, or

both. Should bodily injury result from a violation, or if such acts include the use, attempted

use, or threatened use of a dangerous weapon,

explosive, or fire, the violator may be fined or

imprisoned not more than 10 years, or both.

Should death result from the acts committed

in violation of this section, or if such acts

include kidnapping, attempt to kidnap, aggravated sexual abuse or an attempt to commit

aggravated sexual abuse, or an attempt to kill,

the violator may be fined under this title or

imprisoned for any term of years or for life,

or both, or may be sentenced to death. This

is a more recent federal statute, passed in 1968,

which seeks to punish private individuals who

forcibly interfere with federally protected activities. Therefore, it applies to probation/parole

officers who act in their private capacity. The

first part of the law penalizes a variety of acts,

as already noted. The second part refers to

deprivations of such rights as attending a public school or college; participating in state or

locally sponsored programs; serving on a state

jury; participating in interstate travel; or using

accommodations serving the public, such as

eating places, gas stations, and motels. The 9

CHAPTER

1

AN

OVERVIEW OF

STATE AND

FEDERAL

LEGAL

LIABILITIES
10CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

third part penalizes interference with persons

who encourage or give an opportunity for others to participate in or enjoy the rights enumerated in the statute. It is distinguished from

Sections 241 and 242 in that a person acting

singly and in a private capacity can violate it.

This law is seldom used at present.

■■■

III. MAY AN OFFICER

BE HELD LIABLE

UNDER ALL OF THE

ABOVE LAWS? YES. The whole array of laws outlined above

may apply to a probation/parole officer

based on a single act, if the required elements for liability are present. For example,

an act of an officer that leads to the wrongful 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.

The defense of double jeopardy does not

apply in these cases because double jeopardy

applies only if there are successive prosecutions for the same offense by the same jurisdiction. Civil and criminal penalties may

result from a single act because “successive

prosecution” requires that both cases are

criminal; hence, it does not apply if one case

is criminal and the other civil. Criminal

prosecutions may also take place in state

court and federal court for the same act.

There is no double jeopardy because of the

“same jurisdiction” requirement. State and

federal prosecutions take place in different

jurisdictions; therefore, there is no double

jeopardy. There is no double jeopardy either

if an employee is dismissed from employment and then prosecuted later, or held

civilly liable, for the same act. This is

because dismissal by the agency is administrative in nature and is neither a civil nor a

criminal proceeding. 

An example of the applicability of these laws

is what happened to the police officers (who

are public officials like probation/parole officers) in the infamous Rodney King beating

case. In that case, the officers were first suspended and then dismissed from employment by the agency (administrative liability).

They were then tried for criminal acts (in

Simi Valley) in state court, but all were

acquitted. After acquittal, they were tried

again for criminal acts (in Los Angeles) in

federal court. Two of the four defendants

were acquitted, but the other two were convicted and served time in a federal institution. The officers raised the double jeopardy

defense on appeal, but that did not succeed

because they were tried by two different

jurisdictions. The officers were also held

liable for civil damages, in addition to the

administrative and criminal proceedings.

■■■

IV. DIFFERENT

RESULTS IF HELD

LIABLE Civil liability results in payment of

money by the defendant to the plaintiff

for damages or injury caused. In civil liability cases, therefore, the plaintiff seeks money,

although, in Section 1983 (federal) cases,

the plaintiff may also seek changes in agency

policy or practice in addition to monetary

compensation. Sanctions imposed in criminal cases include time in jail or prison, probation, fine, restitution, or other sanctions

authorized by law and imposed by the

judge. Administrative sanctions include dismissal, demotion, transfer, reprimand, warning, or other sanctions that agency policy or

state law authorize. 
V. POSSIBLE

DEFENDANTS IN

CIVIL LIABILITY

CASES

Using the “deep pockets” approach

(meaning that plaintiffs usually

include as defendants those who are in a

better position to satisfy a monetary judgment against them because they have more

money), plaintiffs generally include as

defendants anybody who might possibly

have anything to do with a case. This

might include the probation/parole officer,

the supervisors, and the governmental

agency that is the employer of the alleged

offending officer. The assumption is that

probation/parole officers have a shallow

pocket, while supervisors and agencies have

deep pockets. Who is responsible for which

amount is usually determined by state law.

A. Government Agency as

Defendant

In lawsuits against the agency, immunity

usually attaches if the defendant is a state

agency. This is because states (and the federal

government) enjoy sovereign immunity, a

doctrine stemming from the common law

concept that “the King can do no wrong,”

hence cannot be sued or held liable. Sovereign

immunity, however, may be waived through

law or judicial decision, and many jurisdictions have waived it. When sovereign immunity does exist in a state, the question arises

as to whether the particular function involved

was governmental (for which there is immunity) or proprietary (for which there is no

immunity). This is a complex area of law

and decisions vary from state to state.

The rule concerning local governments is

different. Local governments are subject to

liability under Monell v. Department of Social

Services.

2 They have been deprived of the

sovereign immunity defense, which was

available to them until the Monell decision

in 1978. Therefore, counties, judicial districts, municipalities, or other nonstate units

of government may be sued and held liable

for what their employees do. 

B. Individual Officers as

Defendants

1. State Officers 

Although state agencies are generally exempt

from liability for their governmental activities unless waived, immunity ordinarily is

unavailable to individual state officers who

are sued. Therefore, members of state probation/parole boards may be sued as individuals. The fact that a state provides counsel, or

indemnifies the officer if held liable, does

not mean that the state has consented to

be sued. It simply means that, if held liable,

the officer pays the damages and the state

indemnifies or reimburses him. All officers,

state or local, may therefore be sued in their

individual capacity under Section 1983.

2. Officers of Nonstate Agencies 

Officers of counties, judicial districts, municipalities, or other nonstate governmental units

may be sued in their official or individual

capacities. As in the case of state officers,

however, plaintiffs will likely sue officers in

their official capacities so they can include

their supervisors and agencies as defendants.

■■■

VI. KINDS OF 

DAMAGES AWARDED

IN CIVIL LIABILITY

CASES

I

n general, three kinds of damages may be

awarded in civil liability cases, particularly

to those who file under state tort law:

11

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12CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

A. Actual or Compensatory

Damages 

These damages reduce to monetary terms

all actual injuries shown by the plaintiff.

Consequential damages, such as medical

bills and lost wages, are termed special damages and are included in the category of

compensatory damages.

In Byrd v. N.Y. City Transit Authority

,

3 a compensatory award was ultimately reduced

from $950,000 to $250,000 for false arrest

and assault when a plaintiff suffered “minor

scarring” and there was insufficient evidence

of loss of earnings.

B. Nominal Damages 

These are an acknowledgment by the court

that the plaintiff proved his cause of action,

usually in the amount of $1. When the plaintiff was wronged but suffered no actual injury,

nominal damages would be appropriate.

In one case, Brooker v. N.Y.,

4 for example, a

plaintiff who was arrested by state police officers, was grabbed by the neck and pulled out

of a tavern. In a claim alleging assault and

battery, the court awarded $1 in nominal

damages, finding that the plaintiff suffered

“no injury” from the use of force and made

“embarrassingly phony” moans of pain only

when someone started to videotape the

events. Similarly, in Floyd v. Laws

,

5 a civil

rights plaintiff was found to be entitled to

judgment and award of nominal damages of

$1 when a jury found her civil rights had

been violated but awarded no actual or punitive damages.

Where nominal damages vindicate the plaintiff as wronged, the door to punitive damages

is opened, with or without a compensatory

damage award. Nominal damages also lay the

basis for awarding 1983 attorney fees in that

they identify the prevailing party.

C. Punitive or Exemplary

Damages 

These damages are designed to punish or

make an example of the wrongdoer, as well

as to deter future transgressions. Punitive

damages awarded can at times be quite high.

In one case, the U.S. Supreme Court held

that a $10 million punitive damage award

did not violate due process requirements of

the 14th amendment. In making its decision, the Supreme Court noted that the

absolute or relative size of a punitive award

was not the test of excessiveness but, rather,

whether an award reflects bias, passion, or

prejudice by the jury.

6 Punitive damages are

awarded only against willful transgressors.

However, the Supreme Court has ruled that

no punitive damages may be awarded

against local governments.

7

■■■

SUMMARY Probation/parole officers may be exposed

to legal liabilities under federal and state

law. Legal liabilities may also be classified

into civil and criminal. This chapter discusses

the various laws and damages to which an

officer may be exposed in connection with

his work. These liabilities are not mutually

exclusive; in fact, one serious act may expose

the officer to a number of civil and criminal

liabilities under federal and state law. In

addition, the officer may be subject to

administrative disciplinary proceedings that

can result in transfer, suspension, demotion,

dismissal, or other forms of sanction.

The constitutional protection against double

jeopardy does not apply to the above cases

because the cases are not all criminal in

nature, the criminal prosecutions discussed

here do not refer to the same act, and the

prosecutions are by different jurisdictions.
Double jeopardy applies only where criminal

prosecutions of the same offense are made

by the same jurisdiction.

In addition to the probation/parole officer, a

plaintiff, using the “deep pockets” approach,

may include as defendants anybody who had

anything to do with the case. This could

include supervisors as well as the government

agency, either state or federal, which is the

employer of the probation/parole officer.

However, a state or federal agency normally

will enjoy sovereign immunity unless waived

through law or judicial decision. If sovereign immunity does exist in a state, it then

becomes important to determine whether the

particular function involved was governmental (for which there is immunity) or proprietary (for which there is no immunity).

Local governments, such as counties, judicial

districts, municipalities, or other nonstate

units of government, may be sued and held

liable for the actions of their employees

under Monell v. Department of Social Services.

In civil liability cases, there are essentially

three kinds of damages that may be awarded.

These include actual or compensatory damages, in which damages are reduced to a

monetary amount for actual injuries shown

by the plaintiff. A second type of damage

award is nominal damages. Here the court

acknowledges that the plaintiff has proved

his/her cause of action, but no actual injury

was sustained. In this case, a nominal damage award of $1 would be appropriate. A

third type of damages awarded in civil cases

is punitive or exemplary damages. These

damages are awarded to punish or make an

example of the wrongdoer as well as to deter

transgressions by others in the future.

Notes

1. See unpublished manuscript of Charles E.

Walker, Jr., General Counsel Board of Pardons

and Paroles, Austin, Texas, “Legal Liabilities of

Probation and Parole Authorities.”

2. Monell v. Department of Social Services,

436 U.S. 658 (1978).

3. Byrd v. N.Y. City Transit Authority, 568

N.Y.S.2d 628 (A.D. 1991).

4. Brooker v. New York, 614 N.Y.S.2d 640

(A.D. 1994).

5. Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991).

6. TXO Production Corp. v. Alliance Resources

Corp., 113 S. Ct. 2711 (1993).

7. City of Newport v. Fact Concerts, Inc., 435

U.S. 247, 101 S. Ct. 2748, 79 L. Ed. 616

(U.S.S.C. 1981).

13

CHAPTER

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OVERVIEW OF

STATE AND

FEDERAL

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LIABILITIES

CHAPTER 2

CHAPTER 2

Civil Liability Under State Law:

State Tort Cases

INTRODUCTION

I. DEFINITION OF STATE TORT

II. KINDS OF STATE TORT

A. Intentional Tort

1. Physical Tort

2. Nonphysical Tort

B. Negligence Tort

1. Definition of Negligence

2. Elements of Negligence Tort

3. Types of Negligence

III. DEFENSES IN STATE TORT CASES

A. The Official Immunity Defense

1. Categories of Official Immunity

2. What Type of Immunity Do Probation/Parole Officers Have?

B. The Governmental Immunity Defense

C. The Public Duty Doctrine Defense in Injury Cases 

Resulting From Negligent Supervision

SUMMARY

NOTES

INTRODUCTION

This chapter discusses two major kinds

of state tort cases: intentional tort and

negligence tort. In legal terminology, the act

itself is called a tortious act, while the person

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 discussion is restricted to general principles. State

law must be consulted for specifics.

■■■

I. DEFINITION OF

STATE TORT

Tort is defined in Black’s Law

Dictionary as:1

A legal wrong committed upon the

person or property independent of

contract. It may be either (1) a direct

invasion of some legal right of the individual; (2) the infraction of some public duty by which special damage accrues

to the individual; (3) the violation of

some private obligation by which like

damage accrues to the individual.

The same act can be a crime against the state

and a tort against an individual; thus, both

a criminal prosecution and a civil tort action

may arise from the same act. For example,

a person who drives while intoxicated and

causes an accident resulting in injury to

another driver and damage to his or her car

may be guilty of the criminal offense of

driving while intoxicated, and civilly liable

for the injury inflicted on the other person

and the damage to the car. Tortious acts may

also be the basis for suits charging violation of civil rights under Section 1983 (federal cases), as discussed in Chapter 3. 

Tort actions are usually tried in state court

before a jury that makes determination of

liability and the amount of damages to be

paid under instructions from the judge as to

the applicable law. The jury determination

is subject to modification, either by the trial

judge or on appeal. A successful tort action

generally results in payment of monetary

damages to the wronged party.

■■■

II. KINDS OF STATE

TORT

Acts that constitute tort vary from one

state to another and are usually determined by case law or legislative enactment.

As indicated above, there are generally two

kinds of tort: intentional tort and negligence

tort. Probation/parole officers are exposed to

both but, of late, more and more cases have

been filed under negligence tort. The allegation in negligence tort cases is that the officer failed or neglected to do what he or she

ought to have done, resulting in injury to

the plaintiff, usually a member of the public.

A. Intentional Tort

Black’s Law Dictionary defines intentional

tort as “a tort in which the actor is expressly

or impliedly judged to have possessed intent

or purpose to injure.”2 To win an intentional tort case, the plaintiff must prove

the following:

■ An act by the defendant;

■ The act must be deliberate and purposeful

or the defendant knew with substantial

certainty that consequences could result

from the act;

■ The result must have been caused by the

act; and

■ Damages resulted from the act.

Example: A probation officer beats up a juvenile probationer for no reason whatsoever, as

a result of which the juvenile suffers injury.

The officer may be held liable under intentional tort because the act was committed by

17

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18CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

the defendant (the officer), the act was deliberate and purposeful, the injury was caused

by the act, and damages (the injury) resulted

from the act.

Intentional tort may be subdivided into two

categories: physical tort and nonphysical tort. 

1. Physical Tort

An illustrative—not exhaustive—list of acts

that constitute physical tort is presented

below.

a. Battery. Intentional harmful or offensive

touching.

b. Assault. Intentionally placing a person in

reasonable apprehension of immediate

touching.

c. Intentional infliction of emotional distress

.

Acts of an officer that caused emotional

distress.

d. False arrest. Arresting a person illegally in

the absence of a warrant.

e. False imprisonment. Illegally detaining a

person after arrest.

f. Wrongful death. Death caused by the

wrongful act of another.

Some torts, such as assault and battery, involve

injury to the person; others, such as trespass,

represent a wrong to a person’s property. These

torts are intentional, which means that they

are based on the intent of the actor to do the

act which caused a certain event or harm.

Other intentional torts include false arrest or

false imprisonment, conversion, invasion of

privacy, infliction of mental distress, libel,

slander, misrepresentation, wrongful death,

and malicious prosecution. Elements of some

of these physical torts include the following: ■ Battery is the intentional infliction by an

individual of a harmful or offensive touching. The defendant in a case of battery is

liable not only for contacts that do actual

physical harm, but also for relatively trivial

ones that are merely offensive or insulting,

such as pushing, spitting in the face,

forcibly removing a person’s hat, or any

touching of someone in anger. The consent of the plaintiff to the contact is a

defense.

3

■ Assault, on the other hand, is an intentional act on the part of an individual that

might not involve any contact, but that

places a person in reasonable apprehension

of immediate touching. Assault is thus a

mental invasion, rather than the physical

invasion involved in battery (although in

many cases both assault and battery are

involved). Examples of assault include

shaking a fist in someone’s face, raising a

weapon, or chasing someone in a hostile

manner. Threatening words alone are usually not sufficient, although they may contribute to an assault. Note that the trend

among the states is to combine assault and

battery as a single, combined offense.

4

■ False arrest and false imprisonment are

two other tortious actions for which probation/parole officers may be liable. False

arrest takes place when a person is illegally

arrested in the absence of a warrant. This

occurs, usually, when the arresting officer

lacks probable cause to believe that a

crime was committed and that the person

arrested committed the act. False imprisonment takes place when, after arrest, a

person is illegally detained. The detention does not have to be in a prison or

jail. It can take place in such facilities as

a halfway house, juvenile home, mental

facility, hospital, or even a private home.

Physical force need not be used under

false imprisonment. Present, immediate

threats are sufficient; future ones are not.

A probation/parole officer need not actually use force to detain a probation/parolee

illegally. Although false imprisonment

usually follows false arrest, false imprisonment may take place even after a valid

arrest. An example is if a probation officer

makes a valid arrest but refuses to release

the probationer after having been ordered

to do so by the judge.

5
■ Wrongful death lawsuit is brought by such

persons as surviving relatives or the executor

of the deceased’s estate. This tort provides

damages to those hurt by the death when

it was wrongfully caused by the actions

of another. No recovery is possible if the

deceased could not have won a suit in his

or her own right had that party survived.

2. Nonphysical Tort

An illustrative list of acts that constitute

nonphysical tort is presented below.

a. Defamation. An invasion of a person’s

interest in his or her reputation.

b. Invasion of privacy. An umbrella concept

covering unreasonable interference with

an individual’s right to be left alone.

c. Misrepresentation of facts. False representation of a past or present fact, on which

individuals may justifiably and actually

rely in making decisions.

d. Malicious prosecution. The initiation of

criminal proceedings without reasonable

cause or for improper reasons, such as

revenge.

e. Wrongful death. When death results from

the wrongful act of another person.

Harm to an individual’s nonphysical interests, such as his or her reputation, privacy,

and emotional well-being, is also tortious.

■ Defamation refers to invasion of a person’s

interest in his or her reputation. In order

for defamation to take place, material

about an individual must be communicated, either orally (slander) or in written

form (libel), to at least one third person

who understood it.6 The material must

tend to lower the reputation of the person

to whom it refers, in the estimation of at

least a substantial minority of a community. Proof of the statement’s truth is an

absolute defense regardless of how damaging it may be. 

■ Invasion of privacy is an umbrella concept

embracing several distinct means of interfering with an individual’s solitude or personality. Each, in its own way, is an unreasonable interference with a person’s right

to be left alone. The areas of concern

include (1) intrusion of the plaintiff’s private affairs or seclusion, (2) publication of

facts placing the plaintiff in a false light,

and (3) public disclosure of private facts

about the plaintiff. The act of invasion

may be mere words, such as the unauthorized communication of some incident

of a person’s private life, or it may be an

overt act, such as wiretapping, “peeping,”

or taking unauthorized photographs.7

■ Infliction of emotional distress refers to

acts (either intentional or negligent) that

cause emotional distress to the plaintiff.

Words alone or gestures or conduct may

be sufficient. Bullying tactics by probation/parole officers or insults shouted in

public might be examples, especially if

they can be deemed “extreme” and “outrageous.” In some states, the emotional

distress must be severe enough to have

resulted in demonstrable physical injuries.

In other states, however, the outrageous

nature of the defendant’s conduct is a sufficient basis for liability.8

■ Misrepresentation of facts requires a false

representation of a past or present fact, on

which individuals may justifiably and do

actually rely in making decisions. By the

nature of their work, probation/parole

officers are susceptible to this. A related

tort is disparagement or injurious falsehoods. These falsehoods are statements

harmful to a person, but that do not necessarily hurt his or her reputation. False

statements such as “A is no longer in business,” or the filing of a false change of

address card with the post office, are

examples.9

■ Malicious prosecution involves the initiation of criminal proceedings, as in a report

to the police or other official that results

in a warrant for the plaintiff’s arrest. The

accusation must be without probable

cause and for an improper reason, such 19

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20CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

as revenge. In order for the defendant to

be liable for malicious prosecution, the

plaintiff against whom proceedings were

initiated must be found innocent.10

B. Negligence Tort

Negligence tort is filed with increasing frequency by plaintiffs who are injured by

crimes that probationers/parolees commit

while on probation/parole supervision. It is

based on the assumption by the public, and

made official policy in some departments,

that one of the purposes of probation/parole

is public protection. Example: X, a member

of the public, is raped by a parolee. X brings

a lawsuit against the parole officer and the

department alleging negligence in their duty

to protect the public. Whether the lawsuit

succeeds or not is an entirely different story;

the likelihood is it will not. The point, however, is that a lawsuit for negligent supervision may be brought against the officer, the

supervisor, and the department for crimes

committed by probationers/parolees. Not

all types of negligence in supervision lead

to liability. An important question for probation/parole officers is: When are they

negligent in their jobs as to be exposed

to negligence lawsuits? The answer is: It

depends on the legal definition of negligence

and available defenses in their jurisdiction. 

1. Definition of Negligence 

One court offers this widely accepted definition of negligence:11

Negligence, in the absence of statute,

is defined as the doing of that thing

which a reasonably prudent person

would not have done, or the failure to

do that thing which a reasonably prudent person would have done in like

or similar circumstances; it is the failure to exercise that degree of care and

prudence that reasonably prudent persons would have exercised . . . in like

or similar circumstances.

One phrase is mentioned three times in the

above definition: a reasonably prudent person. The definition of negligence relies a lot

on what a reasonably prudent person would

or would not have done under similar circumstances. For purposes of day-to-day

decisionmaking, probation/parole officers

are best advised to do what a reasonably

prudent person would have done under

the circumstances. Note, however, that the

above definition may be superseded by a

definition given by state statute or state case

law. A definition that is found in a state

statute or state case law prevails over the

above definition.

2. Elements of Negligence Tort 

In general, the following must be present

if the defendant is to be held liable under

negligence tort law:12 ■ A legal duty owed to the plaintiff; ■ A breach of that duty by omission or

commission;

■ The plaintiff must have suffered an injury

as a result of that breach; and

■ The defendant’s act must have been the

proximate cause of the injury.

3. Types of Negligence 

Negligence may be slight, gross, or willful.

Slight negligence is defined as “an absence of

that degree of care and vigilance which persons of extraordinary prudence and foresight

are accustomed to use”—in other words,

“a failure to exercise great care.” Gross negligence is described as “a failure to exercise

even that care which a careless person would

use,” while willful negligence means that

“the actor has intentionally done an act of

an unreasonable character in disregard of a

risk known to him or so obvious that he

must be taken to have been aware of it, or

so great as to make it highly probable that

harm would follow.”13

In general, no liability ensues if the negligence is slight; liability ensues only if the
negligence is gross or willful. The problem,

however, is that it is sometimes hard to

determine which specific negligence is slight,

gross, or willful. Despite definitions, these

terms are subjective with the trier or fact in

specific cases. What may appear slight to

one judge or jury may be gross to other

individuals. The good news, then, is that

there is no liability for slight negligence

(with some exceptions, as in strict liability

cases); the bad news is that there is no definite guideline to determine what is slight

or gross.

■■■

III. DEFENSES IN

STATE TORT CASES

Many defenses are available in state tort

cases, including consent, self-defense,

defense of others, and defense of property.

Just about each type of tort case has its own

particular defense. For example, the defense

for the tort of assault and battery differs

from the defense against the tort of defamation; the defense for intentional tort differs

from the defense for negligence tort.

Nonetheless, types of defenses are discussed

here because they apply only to government

officials or entities, not to private persons.

These are the official immunity defense

(applies to government officials), the governmental immunity defense (applies to governmental agencies), and the public duty

doctrine defense (applies to public officials

in injury cases as a result of alleged supervision negligence).

A. The Official Immunity

Defense

Official immunity from liability applies to

public officials. The historical justification

for official immunity is that since a government can only act through its officials and

since sovereign immunity is to protect the

operations of government, then those who

carry out governmental operations must also

be immune.14 Another argument advanced

is that it would be unfair and intimidating

to allow a private individual to hold a government officer or employee liable for performing his or her duty. For example, if a

prosecutor could be subjected to a possible

tort lawsuit every time a prosecution failed,

he or she might well decide to prosecute

with less vigor and only when absolutely certain the case will result in a conviction. The

fear of tort liability could have a chilling

effect on job performance.

The meaning of and requirements for the

official immunity defense vary from state to

state. One state court lists the requirements

that must be present in many states for the

defense to succeed, holding that government

employees are entitled to official immunity

from lawsuits arising from the performance

of their “discretionary duties, in good faith,

as long as they are acting within the scope of

their authority.”15 This definition requires

that for the official immunity defense to

succeed, the following must be proved by

the probation/parole officer: (1) the officer

must have been performing a discretionary,

not mandatory, act; (2) the officer must have

acted in good faith; and (3) the officer must

have acted within the scope of his or her

authority. What do these terms mean?

■ Discretionary means that the act involves

personal deliberation, decision, and judgment. Actions that require obedience to

orders or performance of duty to which

the officer has no choice are not discretionary; they are, instead, ministerial.16

Example: To revoke or not to revoke a

probationer for a minor offense is usually

left to the discretion of the officer, unless

revocation is required by agency policy—

which it seldom is. On the other hand,

respecting the constitutional rights of a

probationer, at least those not lost as a

result of being placed on probation, is

ministerial in that the officer had no

option to disregard those rights.

21

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22CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

■ Good faith means that the officer “acted

in the honest belief that the action taken

or the decision was appropriate under the

circumstances.”17 Example: A probation

officer denies permission for a probationer

to travel, based on the reasonable belief

that there is a strong possibility the probationer will not return. 

■ Acting within the scope of authority

means that the officer is discharging the

duties generally assigned.18 Example: An

officer making a home contact is acting

within the scope of authority. In contrast,

an officer who revokes a probationer without justification is clearly acting outside

the scope of authority. 

1. Categories of Official Immunity 

Official immunity may be divided into three

categories: absolute, qualified, and quasijudicial. Each is briefly discussed below.

a. Absolute immunity. The need to encourage

fearless decisionmaking has led to recognition of an absolute immunity for some

officials. This privilege protects the official from liability for official acts even if

they were done with malice, and allows

the courts to dismiss actions for damages

immediately without going into the merits of the plaintiff’s claim.19 Federal and

state legislators, judges, and prosecutors

have this type of immunity. (Indeed, it is

often referred to as “judicial immunity.”)

Although they could be sued in actions

alleging their decisions were based on

malicious grounds, such cases will be dismissed by the courts. These officials are

thus protected from liability. Courts at

both the federal and state levels have

consistently upheld absolute immunity

for legislators and judges, based on the

rationale that these officials must be free

from the fear of liability to exercise their

discretion appropriately.20 This does not

mean that absolutely immune officials

are not accountable for their decisions.

Legislative and judicial ethics bodies may

inquire into and punish misconduct;

somewhat more formally, legislators and

judges can be impeached in appropriate

cases; and all legislators and many judges

are subject to citizen censure at the polls.

They are simply protected from personal

financial liability. It must be noted that

judges do not enjoy absolute immunity in

everything they do. They have absolute

immunity only when performing judicial

or adjudicatory responsibilities, such as

issuing setting conditions of probation or

revoking a probationer. They do not have

absolute immunity when performing

nonjudicial functions, such as when serving as a member of a juvenile probation

board or when hiring or firing probation

officers.

b. Quasi-judicial immunity. Absolute immunity is generally applied to officials in the

judicial and legislative branches of government, while qualified immunity applies to

those in the executive branch. Some officials, however, have both judicial and

executive functions. Such officials include

court personnel, parole board members,

and some probation officers. These officials are given some protection, referred to

as “quasi-judicial immunity.” Under this

type of immunity, judicial-type functions

that involve discretionary decisionmaking

or court functions are immune from liability, while some other functions (such

as ministerial duties of the job) are not.21

The emphasis is on the function performed rather than on the position the

officer holds. In other words, there are

nonjudicial officials who enjoy the same

immunity as judges when performing certain responsibilities that are analogous to

those performed by judges.

c. Qualified immunity. The courts have been

less willing to find absolute immunity

for other public employees who are not

involved in the legislative or judicial

process. These officials are usually from

the executive department of government. 

The doctrine of qualified immunity has two

different formulations. According to one,
the immunity defense is held to apply to an

official’s discretionary acts, meaning those

that require personal deliberation and judgment. The immunity defense is not available, however, for ministerial acts, meaning

those that amount only to the performance

of a duty in which the officer is left with no

significant choice of his or her own.22 For

example, a parole hearing officer’s recommendation to revoke or not to revoke parole

is a discretionary act, but the duty to give

the parolee a hearing before revocation is

ministerial because a hearing is required by

the Constitution, as decided by the United

States Supreme Court.

A major difficulty with the discretionaryministerial distinction is that there is no

adequate way of separating discretionary

from ministerial duties. The distinction

seems to vary from judge to judge and

from jurisdiction to jurisdiction and is thus

difficult to predict. It is clear, however, that

officials in policymaking positions (such as

probation/parole board members) at the

planning level of government are more likely

to be making discretionary decisions and

are thus better able to claim the immunity

defense for their actions. Field officers and

others at government’s operational level

usually perform ministerial acts and, therefore, are advised to consider their functions

as ministerial and not immune, unless otherwise previously decided by a court in

closely similar circumstances.

A second and better known way of interpreting qualified immunity, used in some

states, is by relating it to the “good faith”

defense. Under this concept, a public officer

(other than one who enjoys absolute immunity) is exempt from liability only if he or

she can demonstrate that the actions were

reasonable and were performed in good faith

within the scope of employment.23

2. What Type of Immunity Do

Probation/Parole Officers Have?

Immunity for probation/parole officers is

often dependent on the agencies for which

they work and the nature of the functions

performed, but in general they merely have

qualified immunity. Probation officers who

are employees of the court and work under

court supervision do not enjoy the same

absolute immunity of judges, but they may

be vested with judicial immunity for some

acts. For example, in a recent federal case,

the Fifth Circuit Court of Appeals held that

a probation officer was entitled to judicial

immunity when preparing and submitting

a presentence report in a criminal case and

was not subject to liability for monetary

damages.24 Another case, decided by the

Ninth Circuit Court of Appeals in 1970,

held that in preparing and submitting a presentence report on the defendant, the probation officer was performing a “quasi-judicial”

function and was therefore immune from

liability under Section 1983.25

Many of the actions of such court-supervised

probation officers, however, are considered

executive, and hence are likely to come

under qualified immunity. Probation officers

are liable unless the act is discretionary or

done in good faith. Parole officers are usually employees of the executive department of

the state and, as such, they enjoy only qualified immunity. They do not enjoy any type

of judicial immunity that some courts say

probation officers have when performing

certain court-ordered functions.

Most federal courts of appeals have ruled

that higher officials of the executive branch

who must make judgelike decisions are performing a judicial function that deserves

absolute immunity. This particularly refers

to parole boards when performing such

functions as considering applications for

parole, recommending that a parole date be

rescinded, or conducting a parole revocation

hearing.26 One federal appellate court, however, has stated that probation and parole

board members and officers enjoy absolute

immunity when engaged in adjudicatory

duties but only qualified, good faith immunity for administrative acts. The same court

categorized the failure to provide procedural 23

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24CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

due process in a revocation hearing as ministerial in nature, for which liability attached.27

B. The Governmental Immunity

Defense

This type of immunity protects the government (instead of individuals) from liability.

It derives from the early English concept of

“sovereign immunity,” which proclaims that

“the King could do no wrong,” and, therefore, he could not be subjected to suits in

his own courts.28 Sovereign immunity was

adopted in the United States at an early date

through court cases and memorialized in the

11th amendment to the Constitution.29

Initially, the doctrine was held by the court

to bar suits against the federal and state governments, based on the premise that the government had authority to protect itself from

liability suits. The right to sue for damages

was created by the government, and the government, as the creator, could exempt itself

from the enforcement of that right. Various

justifications for exempting the government

from liability were advanced, involving considerations of finance and administrative

feasibility.30

Neither the federal government nor any

state fully retains its sovereign immunity.

Legislatures in every jurisdiction have been

under pressure to compensate victims of

governmental wrongs, and all have adopted

some form of legislation waiving immunity

in at least some areas of governmental activity.

As noted by one scholar:31

The urgent fiscal necessities that made

the governmental immunity acceptable

at the outset are no longer present.

The United States and a growing number of states have found it financially

feasible for them to accept liability for

and consent to suit upon claims of

negligence and omission, for which

they traditionally bore no liability at

all; the availability of public liability

insurance as well as self-insurance

makes the assumption of this wholly

new liability quite tolerable.

No state, however, has gone so far as to

totally relinquish immunity for all injuries

caused through the misadministration of the

governmental process.

State immunity, subject to waiver by legislation or judicial decree, is an operational

doctrine for states and their agencies. A distinction must be made, however, between

agency liability and individual liability. State

immunity only extends to state agencies.

It does not necessarily extend to individual

state officers who can be sued and held personally liable for civil rights violations or

tortious acts. Therefore, in states where

sovereign immunity has not been waived,

state officials may still be sued and held

liable because they do not partake of governmental immunity. For example, a state

cannot be sued (unless sovereign immunity

is waived), but the chairman and members

of the State Parole Board can be sued and

held liable. Whether the state will provide

legal representation and indemnification,

if held liable, varies from state to state.

Prior to the 1978, municipal governments,

counties, and villages could not be sued

because they were considered extensions of

state power and hence enjoyed sovereign

immunity. All that changed in 1978 when

the United States Supreme Court held in

Monell v. Department of Social Services32

that local units of government may be

held liable, in a Section 1983 action, if the

allegedly unconstitutional action was taken

by the officer as a part of an official policy

or custom.

As is evident from the above discussion, the

immunity defense is complex, confusing,

and far from settled, particularly in the case

of probation/parole officers. Variations are

found from state to state and from one jurisdiction to another. The above discussion

is designed merely to provide a general
framework and guideline. (Table 2–1 presents what courts in most jurisdictions have

said. It is not meant to be a definitive statement on the issue of immunity. Readers

should consult their legal advisors for the

law and court decisions in their states.)

C. The Public Duty Doctrine

Defense in Injury Cases Resulting

From Negligent Supervision

The general rule is that there is no liability

on the part of probation/parole officers for

failing to protect a member of the public

who suffers injury inflicted by a probationer/parolee. This protection from liability

stems from the “public duty doctrine,”

which holds that government functions are

owed to the general public but not to specific

individuals.33 Therefore, probation/parole

officers who fail to prevent an injury to a

member of the public are not liable for

the injury inflicted. One of the goals of

probation/parole is public protection.

Injured members of the public file lawsuits

against probation/parole officers and departments because they link the injury caused by

probationers or parolees to negligent supervision or failure to revoke probation or

parole. The public assumes that, had the

offender been properly supervised and had

the probation/parole been revoked upon

violation of conditions, the injury could

have been prevented.

Logical as this thinking may be, it generally

has no basis in law. The reality is that, were

it not for the protection against civil liability

given by the public duty doctrine, nobody

would ever want to be a police, probation,

or parole officer. These are high-risk occupations that profess public protection as a part

of their mission, yet they hardly have any

control over what the public or their supervisees do vis-à-vis the public; therefore, they

are protected against civil liability. 

25

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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.
26CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

The Exception: Liability May Be Imposed

If a Special Relationship Exists

There is one major but multifaceted and

largely undefined exception to the public

duty doctrine. This is the special relationship exception. The term means that if a

duty is owed to a particular person rather

than to the general public, then a probation/parole officer or agency that breaches

that duty can be held liable for damages.

Special relationship has many meanings

depending on state law, court decisions,

or agency regulations.34

In cases involving the police and law

enforcement officers, courts might find liability to injured individuals in the following

instances based on special relationship: ■ When the police deprive an individual of

liberty by taking him or her into custody.35

■ When the police assume an obligation

that goes beyond police duty to protect

the general public.36

■ When protection is mandated by law.37 ■ When protection is ordered by the court.38 ■ In some domestic abuse cases.39

What the above situations above have in

common is that the duty of the police has

shifted from that of protecting the public

in general to protecting a particular person

or persons; hence a special relationship is

deemed to have been established.

There are instances when the special relationship exception might apply to probation/parole officers. This is particularly likely

when they are vested with law enforcement

authority, as they are in some jurisdictions.

Realistically, however, liability based on special relationship in probation/parole might

arise in the following cases: ■ When a probation/parole officer has credible knowledge that a crime is about to be

committed by a probationer/parolee and

the officer could have prevented it, but

negligently failed to do so. Example: A

parole officer has credible information

that a parolee is planning to commit a

crime and could have prevented it, but

failed to do so; and

■ When the probation/parole officer fails

to follow a specific order of the court.

Example: A judge orders a probation officer not to allow a probationer to have

access to his estranged wife and the officer

could have done that but failed to do so.

The problem with the special relationship

exception is that it is difficult to determine

under what specific circumstances a special

relationship exists. There are no definite

guidelines. Special relationship cases in policing appear to indicate that courts or juries first

impose liability in particularly bad cases to

compensate an injured member of the public,

then fall back on the special relationship

exception to justify the award. The thinking

seems to be that the victim has suffered

because of what the probationer/parolee has

done and should be compensated either by

the state or by those in charge of supervision.

The public duty doctrine and the special

relationship exception are discussed more

fully in Chapter 8, Supervision.

■■■

SUMMARY Probation and parole officers may be held

liable under state tort law. There are two

kinds of state tort: intentional tort and negligence tort. Intentional tort has two subcategories: physical tort and nonphysical tort.

Negligence tort has assumed greater importance for probation/parole officers because

of the increasing number of cases filed by

the public. This happens when a member of

the public is injured by a probationer/parolee

and that person feels the injury could have

been prevented had the officer properly

supervised the probationer/parolee.

Intentional tort is a tort of commission,
whereas negligence tort is generally a tort of

omission, meaning the officer failed to do

something that ought to have been done.

Three defenses to state tort are discussed in

this chapter: the official immunity defense

(applies to government officials); the governmental immunity defense (applies to government agencies); and the public duty doctrine

defense (applies to public officials in injury

cases as a result or alleged supervision negligence). Official immunity may be divided

into three categories: absolute, qualified, and

quasi-judicial. Judges and prosecutors enjoy

absolute immunity while performing judicial

responsibilities; probation/parole officers

have qualified immunity. Governmental

immunity means that the government cannot be sued because of sovereign immunity,

unless such immunity is waived by legislation

or case law. Local agencies, however, do not

enjoy sovereign immunity; hence, they can

be sued and held liable. The public duty doctrine holds that government functions are

owed to the general public but not to specific

individuals. Therefore, probation/parole officers who fail to prevent an injury to a member of the public are not liable, unless it falls

under the special relationship exception.

Special relationship, however, is an ill-defined

concept and tends to be applied on a caseby-case basis.

Notes

1. Black’s Law Dictionary, sixth edition (1991),

at 1036.

2. Id. at 560.

3. W. Prosser, Handbook of the Law of Torts, at 10

(4th ed. 1971).

4. Id. at 41.

5. Id. at 47. 

6. Bay Area Review Course, Torts (Los Angeles,

Ca., Bay Area Review Course, Inc., 1972), at 76.

7. Id. at 87.

8. Id. at 89.

9. Id. at 97-98.

10. Id. at 101.

11. See Biddle v. Mazzocco, 248 P.2d 364

(1955).

12. Supra note 3, at 143.

13. Supra note 3, at 183-85.

14. Committee on the Office of Attorney

General, National Association of Attorneys

General, Official Liability: Immunity Under

Section 1983, at 7 (July 1979).

15. City of Lancaster v. Chambers, 883 S.W.2d

(Texas 1994).

16. City of Pharr v. Ruiz, 944 S.W.2d 709

(Tx. Cr. App. Corpus Christi, 1997).

17. Id. 

18. Supra note 14. 

19. Texas Advisory Commission on

Intergovernmental Relations, Personal Tort

Liability of Texas Public Employees and Officials:

A Legal Guide, at 12 (1979).

20. Supra note 13, at 7.

21. Supra note 13, at 47.

22. Supra note 13, at 8.

23. Supra note 13, at 69.

24. Spaulding v. Nielsen, 599 F.2d 728 

(5th Cir. 1979).

25. Burkes v. Callion, 433 F.2d 318 (9th Cir.

1970), cert. denied, 403 U.S. 908 (1970).

26. Keeton v. Procunier, 468 F.2d 810 (9th Cir.

1972), cert. denied, 411 U.S. 987 (1973); Pope

v. Chew, 521 F.2d 400 (4th Cir. 1975); Douglas

v. Muncy, 570 F.2d 499 (4th Cir. 1978). For a

more detailed discussion of cases on the issue of 27

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28

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

immunity in the performance of quasi-judicial

functions, see supra note 18, at 47 et seq.

27. Thompson v. Burke, 556 F.2d 231 

(3d Cir. 1977).

28. Supra note 13, at 1.

29. Id. at 2.

30. Id. at 5.

31. D. Engdahl, Immunity and Accountability for

Positive Governmental Wrongs, 44 U. Colo. L.

Rev. 1, at 60 (1972).

32. Monell v. Department of Social Services,

436 U.S. 658 (1978).

33. For a classic formulation of the public duty

doctrine, see Ryan v. State, 656 P.2d 616 (1982).

34. For cases on the special relationship exception to the public duty doctrine, see I. Silver,

Police Civil Liability (Matthew Bender), 1991,

Sec. 9.07 ff.

35. See Sanders v. City of Belle Glade, 510 So.

2d (Fla. App. 1987).

36. See Schuster v. City of New York, 154

N.E.2d 534 (N.Y. 1958).

37. See Irwin v. Town of Ware, 467 N.E.2d 1292

(Mass. 1984).

38. See Sorichetti v. City of New York, 482

N.E.2d 70 (1985).

39. This happens in cases when a state passes

legislation authorizing courts to issue protective

orders to spouses in domestic abuse situations

and the police fail to enforce the order.
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

V. SECTION 1983 AND STATE TORT CASES COMPARED

SUMMARY

NOTES

CHAPTER 3

INTRODUCTION

Section 1983 of Title 42, United States

Code, is perhaps the most frequently

used provision in the array of legal liability

statutes against public officials, including

probation and parole officers. It is therefore

important that this law be properly understood by probation and parole officers. This

chapter discusses Section 1983 cases, sometimes also called civil rights cases. These

cases are usually filed in federal courts and

the plaintiff, as in state tort cases, seeks damages and/or changes in agency policy or

practice.

■■■

I. SECTION 1983

CASES 

A. The Law

Title 42, United States Code, Section

1983—Civil action for deprivation of

rights, reads as follows:

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or 

the District of Columbia, subjects, or

causes to be subjected, any citizen of the

United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured

in an action at law, suit in equity, or

other proper proceeding for redress,

except that in any action brought

against a judicial officer for an act or

omission taken in such officer’s judicial

capacity, injunctive relief shall not be

granted unless a declaratory decree

was violated or declaratory relief was

unavailable. For the purposes of this

section, any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of the

District of Columbia.

B. History of the Law

Section 1983 dates from the post-Civil War

Reconstruction Era when Congress saw a

need for civil means to redress civil rights

violations. It was not feasible at that time to

enact a federal criminal statute. In 1871, the

federal Congress passed Section 1983, then

popularly known as the Ku Klux Klan Act.1

It was designed to enforce the provisions of

the 14th amendment against discrimination

and to minimize racial abuses by state officials. Its immediate aim was to provide protection to those wronged through the misuse

of power possessed by virtue of state law and

made possible only because the wrongdoer

was clothed with the authority of state law.

As originally interpreted, however, the law

did not apply to civil rights violations where

the officer’s conduct was such that it could

not have been authorized by the agency;

hence, it was seldom used. That picture

changed in 1961 when Monroe v. Pape was

decided.

In Monroe v. Pape,

2 the United States

Supreme Court ruled that Section 1983

applied to all violations of constitutional

rights even when the public officer was acting outside the scope of employment. This

greatly expanded the scope of protected

rights and gave impetus to a virtual avalanche of cases filed in federal courts based

on a variety of alleged constitutional rights

violations, whether the officer was acting

within or outside the scope of duty.

C. Why Section 1983 Lawsuits

Are Popular

Civil rights suits are often used by plaintiffs

for a variety of reasons. First, they almost

always seek damage from the defendant,

meaning that if the plaintiff wins, somebody

pays. This can be very intimidating to a probation/parole officer who may not have the

personal resources or the insurance to cover 31

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liabilities. Second, civil rights suits can be

filed as a class action suit where several

plaintiffs alleging similar violations are

grouped together and their cases are heard

collectively. This presents the appearance of

strength and unity and affords plaintiffs

mutual moral support. Third, if a civil rights

suit succeeds, its effect is generic rather than

specific. For example, if a civil rights suit

succeeds in declaring unconstitutional the

practice of giving parolees only one hearing

before revocation instead of a preliminary

and final hearing as indicated in Morrissey

v. Brewer

,

3 the ruling benefits all parolees

instead of just the plaintiff. Fourth, civil

rights cases are usually filed directly in federal courts where procedures for obtaining

materials from the defendant (called “discovery”) are often more liberal than in state

courts. This facilitates access to important

state documents and records needed for

trial. A fifth and perhaps most important

reason is that since 1976, under federal law,

a prevailing plaintiff may recover attorney’s

fees. Consequently, lawyers have become

more inclined to file Section 1983 cases if

they see any semblance of merit in the suit. 

D. Roadblocks to Criminal Cases

Against a Public Officer

Plaintiffs use Section 1983 suits extensively

despite the availability of criminal sanctions

against the public officer. One reason is that

the two are not mutually exclusive. A case

filed under Section 1983 is a civil case in

which the plaintiff seeks vindication of

rights. The vindication that an injured party

feels if a criminal case is brought because of

injury is less direct. Moreover, there are definite barriers to the use of criminal sanctions

against erring probation/parole officers.

Among these are the unwillingness of some

district attorneys to file cases against public

officers with whom they work and whose

help they may sometimes need. An exception

might be where the injury was serious or if

the case has generated massive adverse publicity. Another roadblock is that serious criminal cases in most states must be referred to a

grand jury for indictment. Grand juries may

not be inclined to charge public officers with

criminal offenses unless it is shown clearly that

the act was gross and blatant abuse of discretion. In many criminal cases involving alleged

violation of rights, the evidence may come

down to the word of the complainant against

the word of a public officer. The grand jury

may be more inclined to believe the probation/parole officer’s testimony. Finally, the

degree of certainty needed to succeed in civil

cases is mere preponderance of evidence

(roughly, more than 50 percent certainty),

much lower than the guilt beyond a reasonable

(95 percent or more certainty of guilt) standard needed to convict criminal defendants.

■■■

II. TWO 

REQUIREMENTS 

FOR A SECTION

1983 LAWSUIT TO 

SUCCEED There are two requirements for a 1983

lawsuit to succeed in court: 

■ The defendant acted under “color of law”;

and

■ The defendant violated a constitutional

right or a right given by federal (but not

by state) law.

A. The Defendant Acted Under

Color of Law

This means the misuse of power possessed

by virtue of law and made possible only

because the public official is clothed with

the authority of law.

4 (Note: Some writers

prefer to use the term “color of state law.”

While this is the more accurate term, it can

be misleading because Section 1983 also

applies to federal officers and officers on the

county, municipality, or lower government

level. To avoid confusion, this writer feels it 32CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS
is better to use the term “acting under color

of law,” such term referring to law on all

levels—federal, state, county, municipal,

or smaller governmental units.)

While it is easy to identify acts that are

wholly within the term “color of law” (as

when a probation officer conducts a presentence investigation upon court order), there

are gray areas that defy easy categorization

(as when a probation officer who moonlights as a private security guard illegally

arrests a person known by that individual

to be a probationer). As a general rule, anything a probation/parole officer does in the

performance of regular duties and during

the usual hours is considered under color of

state law. Conversely, what he or she does as

a private citizen during his or her off-hours

falls outside the color of state law. In general, an officer acts under color of law if the

officer takes advantage of his or her authority

to do what he or she did. Example: A probation officer, during off-duty hours, sees a

parolee in a local strip joint. One word leads

to another and the officer arrests and beats

up the probationer. The officer is acting

under color of law.

The term “color of law” does not mean that

the act was in fact authorized by law. It is

sufficient if the act appeared to be lawful

even if it was not in fact authorized.5 Hence,

if the probation/parole officer exceeded lawful authority, he or she is still considered to

have acted under color of law. An example

is a probation officer who searches a probationer’s residence without legal authorization. Such officer is considered to have acted

under color of law and therefore may be

sued under Section 1983.

Can federal officers be sued under Section

1983? The United States Supreme Court

in Bivens v. Six Unknown Agents,

6 decided in

1971, in effect said “yes.” The court stated

that a cause of action, derived from the

Constitution, exists in favor of victims of

federal officials’ misconduct. In addition,

a federal officer can be sued directly under

Section 1983 if he or she assists state officers

who act under color of law.7

In 1997, the United States Supreme Court

held that prison guards working for privately

run state prisons may be held liable in Section

1983 cases.8 This means that private individuals who are under contract with or performing

public functions for probation/parole agencies

will likely be held suable under Section 1983

because they are considered “acting under

color of law.”

B. The Violation Must Be of 

a Constitutional Right or of a

Right Given by Federal (but

Not State) Law

Under this requisite, the right violated must

be one that is guaranteed by the United

States Constitution or is given the plaintiff

by federal law. Rights given only by state

law are not protected under Section 1983.

For example, the right to a lawyer during

a parole release hearing is not given by the

Constitution or by federal law, so a violation

thereof does not give rise to a 1983 suit. If

this right is given an inmate, however, by

state law, its violation may be punishable

under state law or administrative regulation,

but not under Section 1983.

The worrisome aspects of this requirement

are not acts of probation/parole officers that

are blatantly violative of a constitutional right

(as when a probation officer searches a probationer’s house without authorization). The

problem lies in the difficulty in ascertaining

whether or not a specific constitutional right

exists. This is particularly troublesome in

probation/parole where the courts have only

recently started to define the specific rights to

which probationers and parolees are constitutionally entitled. The United States Supreme

Court has decided only a handful of cases

thus far, although federal district courts and

courts of appeals have decided many. Some of

these decisions may be inconsistent with each

other. It is important, therefore, for the probation/parole officer to be familiar with the 33

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current law as decided by the courts in his or

her jurisdiction. This is the law that must be

followed regardless of decisions to the contrary in other states.

A probation/parole officer is liable if the

above two elements are present. Absence of

one means that there is no liability under

Section 1983. The officer may, however, be

liable under some other law, as for tort, or

under the penal code, but not Section 1983.

For example, a drunken probation officer

who beats up somebody in a downtown bar

may be liable under the regular penal code

provisions for assault and battery, but not

under Section 1983. Regrettably, the absence

of any of the above elements does not prevent the filing of a 1983 suit. Suits may be

filed by anybody at any time. Whether the

suit will succeed or not is a different matter.

The United State Supreme Court has ruled

that defendants in Section 1983 lawsuits

may raise the qualified (good faith) immunity

defense in both motion to dismiss and

motion for summary judgment, and may be

able to appeal denials both times in the same

case prior to trial.

9

■■■

III. OTHER LEGAL

CONSIDERATIONS Although Section 1983 cases require

only two requirements to succeed (as

discussed above), there are other considerations that help explain when Section 1983

cases succeed or fail. These are:

A. The Violation Must Reach

Constitutional Level

Not all violations of rights lead to liability

under Section 1983. The violation must

be of constitutional proportion. What this

means is not exactly clear, except that

unusually serious violations are actionable,

whereas less serious ones are not. This is

reflected in the requirement, previously

noted, of “gross negligence” or “deliberate

indifference,” etc. In the words of the

Eighth Circuit Court of Appeals:10

Courts cannot prohibit a given condition or type of treatment unless it

reaches a level of constitutional abuse.

Courts encounter numerous cases in

which the acts or conditions under

attack are clearly undesirable . . . but

the courts are powerless to act because

the practices are not so abusive as to

violate a constitutional right.

Mere words, threats, a push, or a shove do

not necessarily constitute a civil rights violation.11 Neither does Section 1983 apply to

such cases as the officer giving false testimony, simple negligence, or name calling.12

On the other hand, the denial of the right

to a parole revocation hearing as mandated

in Morrissey v. Brewer13 now constitutes

a clear violation of a constitutional right.

Before 1972, there would have been no

violation because the right at that time had

not as yet been declared as required by the

Constitution.

B. The Defendant Must Be a

Natural Person or a Local

Government, but Not a State

Until recently, only natural persons could

be held liable in 1983 suits. State and local

governments were exempt because of the

doctrine of sovereign immunity. In 1978,

however, the United States Supreme Court,

in Monell v. Department of Social Services

,

14

held that the local units of government may

be held liable if the allegedly unconstitutional action was taken by the officer as a part

of an official policy or custom. What “policy

or custom” means has not been made clear

and is subject to varying interpretations.

Apparently, if the employee on his or her

own and without sanction or participation

by the local government deprived another

34CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS
of his or her rights, no liability attaches to

the local government even if the officer is

adjudged liable.

Monell does not affect state immunity

because it applies to local governments only.

This is not of much consolation to state

officers, however; civil rights cases can be

filed against the state officer himself, and he

or she will be personally liable if the suit

succeeds. While Monell involved social services personnel, there is no reason to believe

it does not apply to local probation/parole

operations. Lower courts have already

applied it to many local agencies.

While local governments can be sued, states

generally cannot be sued because they are

insulated from liability by the doctrine of

“sovereign immunity,” which means that a

sovereign is immune from lawsuit because it

can do no wrong. The one big exception to

this rule, however, is if sovereign immunity

has been waived by the state (and many states

have waived sovereign immunity in varying

degrees, thus allowing themselves to be sued)

through legislation or court decisions.

■■■

IV. DEFENSES IN SECTION 1983 LAWSUITS

There are a number of defenses to Section

1983 cases, usually depending upon

the facts of the case. Two of those defenses

(the others being more technical) are discussed here. One is the good faith defense

and the other the probable cause defense.

A. The Good Faith Defense as

Defined in Harlow v. Fitzgerald

The “good faith” defense in Section 1983

cases holds that an officer is not civilly liable

unless he or she violated a clearly established

statutory or constitutional right of which a

reasonable person would have known. This

definition was given in the 1983 case of

Harlow v. Fitzgerald,

15 wherein the Court

said:

We therefore hold that government

officials performing discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate a clearly

established statutory or constitutional

right of which a reasonable person

would have known. . . . The judge

appropriately may determine, not

only the currently applicable law, but

whether that law was clearly established at the time an action occurred.

If the law at that time was not clearly

established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could

he fairly be said to “know” that the law

forbade conduct not previously identified as unlawful.

The above excerpt indicates that the good

faith defense has two requirements: (a) an

officer violated a clearly established statutory

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. 

Although the Harlow case, above, did not

involve probation or parole officers (it

involved two White House aides under

former President Nixon), the Court, in

Anderson v. Creighton,

16 later said that the

Harlow standard applies to other public officers, such as the police, who are performing

their responsibilities. In the Anderson case,

a federal agent and other law enforcement

officers made a warrantless search of a home,

believing that a bank robber was hiding

there. The family that occupied the home

then sued for violation of the fourth amendment right against unreasonable search and

seizure, alleging that the agents’ act was

unreasonable. On appeal, the Court said

that the lower court should have considered

not only the general rule about home

35

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entries, but also the facts known to the

agents at the time of entry. According to the

Court, the proper inquiry was whether a

reasonable law enforcement officer could

have concluded that the circumstances surrounding that case added up to probable

cause and exigent circumstances, which

would then justify a warrantless search. If

such a conclusion is possible, then the good

faith defense applies. This should apply to

probation and parole officers as well. In

short, if a reasonable probation or parole

officer could have concluded that the circumstances surrounding the act make the

action taken legal and valid, then the good

faith defense should apply.

When is a right considered to be “clearly

established?” The Federal Court of Appeals

for the Fifth Circuit sets this standard: “A

plaintiff must show that, when the defendant

acted, the law established the contours of

a right so clearly that a reasonable official

would have understood his or her acts were

unlawful.” The court then added that: “If

reasonable public officials could differ on the

lawfulness of the defendant’s actions, the

defendant is entitled to qualified immunity.”17 

The “clearly established” requirement of a

Section 1983 good faith defense may be

illustrated by the recent case of Wilson et al.

v. Layne, otherwise known as the “media

ride-along case,” decided by the Court in

1999.18 Although involving a police officer,

the case should apply to probation and

parole officers as well because the principle

is the same. In this case, federal and local

law enforcement agents invited a newspaper reporter and a photographer to accompany them while executing a warrant to

arrest a suspect who was the son of the

plaintiffs. The son was not in the house,

but the reporters photographed the incident, although the photographs were never

even published by their newspaper. The parents sued. The issue on appeal was whether

plaintiffs’ constitutional rights were violated

when law enforcement agents invited the

photographers to ride along with them

during the arrest. The Court said yes, but

did not impose monetary damages on the

officers because the officers acted in good

faith. The Court said that the right violated

at the time of the incident was not yet “clearly established,” since at that time it was not

clear whether ride-alongs were violative of

constitutional rights. The law enforcement

officers, therefore, did not violate a “clearly

established constitutional right of which a

reasonable person would have known.” From

now on, however, law enforcement officers

who invite the media to “ride along” to take

pictures during an arrest may be held liable

because they will violate a “clearly established

constitutional right of which a reasonable

person would have known.”

The good faith defense has two important

implications for probation and parole officers and agencies. First, officers must know

the basic constitutional and federal rights of

offenders. Although officers may be familiar

with these rights from college courses and

corrections training, their knowledge needs

constant updating in light of new court

decisions in criminal procedure and constitutional law. The second implication of the

Harlow test is that it places an obligation on

police agencies to constantly inform their

officers of new cases that establish constitutional rights. Moreover, agencies must update

their manuals or guidelines to reflect decided

cases not only from the United States

Supreme Court but also from federal courts

in their jurisdiction. 

Some Good Faith Concerns

There are issues other than the meaning of

good faith that need to be addressed in this

section. One is the question of procedure

during the trial. The question is this: In a

Section 1983 case, should the plaintiff prove

bad faith on the part of the defendant to be

entitled to damages, or is it enough for the

plaintiff to state that he or she was deprived

of a constitutional right and leave it to the

defendant to prove good faith, if that be his

or her defense? This is important because

it is often difficult for a plaintiff to prove

36CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS
the bad faith state of mind. Obviously, the

defendant will always claim good faith in an

effort to justify his or her act. In Gomez v.

Toledo,

19 decided in 1980, the United States

Supreme Court resolved this issue, which

had long troubled lower appellate courts and

had resulted in inconsistent decisions. The

Court stated that in Section 1983 actions

the plaintiff is not required to allege, much

less prove, that the defendant acted in bad

faith in order to state a claim for relief. The

burden is on the defendant to plead good

faith as an affirmative defense. The court

construed the provisions of Section 1983

as requiring only two allegations:

■ The plaintiff must allege that some person

has deprived him or her of a federal right.

■ The person who has deprived him of that

right acted under color of law.

The decision is significant in that the defendant in a civil rights suit now has the burden

of proving good faith in the performance of

his or her responsibilities. The officer must

rely on the strength of his or her own good

faith defense instead of hoping that the

plaintiff’s case is weak and that it fails to

prove bad faith.

A second important issue involving good faith

was resolved by the United States Supreme

Court in Owen v. City of Independence,

20 also

decided in 1980. In Owen, the Court said

that a municipality sued under Section 1983

cannot invoke the good faith defense, which

is available to its officers and employees.

Stating that individual blameworthiness is

no longer the acid test of liability, the Court

said that “the principle of equitable lossspreading has joined fault as a factor in distributing the costs of official misconduct.”

The decision concluded thus:21

The innocent individual who is harmed

by an abuse of governmental authority

is assured that he will be compensated

for his injury. The offending official,

so long as he conducts himself in good

faith, may go about his business

secure in the knowledge that a qualified immunity will protect him from

personal liability for damages that are

more appropriately chargeable to the

populace as a whole.

The decision should cause some concern to

probation and parole officers employed by

local agencies because of its budgetary and

supervisory implications. It would appear

from the decision that once damage is

established in court, liability on the part

of the agency ensues under the “equitable

loss-spreading” rationale, even if the act was

done in good faith by municipal officials.

The concomitant budgetary strain from this

decision is obviously difficult to estimate.

Should the liability have no exceptions, then

the decision may have the salutary effect of

motivating local governments to scrutinize

their own rules and practices as an act of

fiscal wisdom. The Court in fact hoped

that the threat that damages may be levied

against the city might encourage those in

policymaking positions to institute internal

rules and programs designed to minimize

the likelihood of unintentional infringements

on constitutional rights. In addition, the

Court anticipated that the threat of liability

ought to increase the attentiveness with

which officials at higher levels of government

supervise the conduct of their subordinates.

Unless subsequent decisions blunt its sharp

effects, the Owen case, although assuring a

degree of victim compensation at a time

when it is fashionable to do so, may create

problems among local governmental agencies that will doubtless have interesting ramifications for local probation/parole officers.

B. The Probable Cause Defense,

but Only in Fourth Amendment

Cases

The second defense in Section 1983 discussed in this chapter is the probable cause

defense. It states that the officer is not liable

in cases where probable cause is present. It is

a limited type of defense because it applies 37

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only in fourth amendment cases where

probable cause is required for the probation

or parole officer to be able to act legally. It

cannot be used in cases alleging violations

of other constitutional rights, such as the

1st, 5th, 6th, or 14th amendments.

One court has said that for purposes of a

legal defense in Section 1983 cases, probable

cause simply means “a reasonable good faith

belief in the legality of the action taken.”22

That standard is lower than for the fourth

amendment concept of probable cause,

which is defined as “more than bare suspicion; it exists when the facts and circumstances within the officers’ knowledge and

of which they had reasonably trustworthy

information are sufficient in themselves to

warrant a man of reasonable caution in

the belief that an offense has been or is

being committed.” 

V. SECTION 1983 AND

STATE TORT CASES

COMPARED

State tort cases (discussed in chapter 2)

and Section 1983 cases (discussed in

this chapter) can be confusing unless their

basic features are identified. Table 3–1 presents a comparison of these two types of

lawsuits that are usually brought against

probation/parole officers.

■■■

SUMMARY

Civil liability cases in federal court are

generally known as Section 1983 cases.

Based on Title 42 of the United States Code,

Section 1983 cases need two requirements

38

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

Table 3–1. Types of Lawsuits Brought Against Probation/Parole Officers

Federal (Section 1983) Cases State Tort Cases

Based on federal law Based on state law

Plaintiff seeks money for damages and/or Plaintiff seeks money for damages

policy change

Law was passed in 1871 Usually based on decided cases

Usually tried in federal court Usually tried in state court

Only public officials can be sued Public officials and private persons can be sued

Basis for liability is violation of a constitutional Basis for liability is injury to person or property

right or of a right secured by federal law of another in violation of a duty imposed by

state law

“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

should have known 
if they are to succeed. The first is that the

defendant acted under color of law; the second is that the violation must be of a constitutional right or of a right given by federal

(but not by state) law. There are a number

of defenses in Section 1983 cases, two of

which are discussed in this chapter. The first

is the good faith defense, meaning that the

officer is not liable unless he or she violated

a clearly established statutory or constitutional right of which a reasonable person

would have known. This good faith definition in Section 1983 cases is different from

the good faith definition in state tort cases.

The second defense is probable cause, meaning that the officer is not liable if probable

cause was present when the action was

taken. This defense, however, is limited only

to fourth amendment cases and does not

apply to violations of any other constitutional right.

Notes

1. M. Weisz and R. Crane, Defenses to Civil

Rights Actions Against Correctional Employers

(Correctional Law Project, American

Correctional Association, 1977).

2. 365 U.S. 167 (1961).

3. 408 U.S. 471 (1972).

4. Williams v. United States, 342 U.S. 97

(1951).

5. Americans for Effective Law Enforcement,

Defense Manual: Civil Rights Suits Against Police

Officers—Part I, at 13 (1979).

6. 403 U.S. (1971).

7. See supra note 5, at 9.

8. Richardson v. McKnight, 117 S. Ct. 2100

(1997).

9. Behrens v. Pelletier, 116 S. Ct. 834 (1996).

10. Witsie v. California Department of

Corrections, 406 F.2d 515 (8th Cir. 1968).

11. See supra note 1, at 9, 10.

12. See supra note 5, at 30.

13. 408 U.S. 471 (1972).

14. 436 U.S. 658 (1978).

15. 457 U.S. 800 (1982). 

16. 483 U.S. 635 (1987). 

17. Fraire v. City of Arlington, 957 F.2d 1268

(5th Cir. 1992).

18. No. 98-93 (1999).

19. 446 U.S. (1980).

20. 445 U.S. 622 (1980). 

21. Id. at 4399.

22. Rodriguez v. Jones, 473 F.2d 599 

(5th Cir. 1973).

39

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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

CHAPTER 4

INTRODUCTION

Aprobation/parole officer facing a liability lawsuit under state or federal law has

three immediate concerns: legal representation, attorneys’ fees, and indemnification

(that is, who pays for the damages imposed)

in case of liability. These concerns are discussed below in the light of legal research

and findings from an extensive survey distributed to the offices of attorneys general

nationwide for the first edition of this monograph. The survey was conducted in the early

eighties, but, as best we know, no other survey or study has been conducted since then

specifically on these issues in relation to probation/parole officers. The survey results are

dated, but no other information is currently

available on these topics; hence, the results

are used here with available updates.

■■■

I. LEGAL REPRESENTATION

States use various guidelines in deciding

what kinds of acts of public officers they

will defend. In general, the states are more

willing to provide legal assistance to state

employees sued in civil cases than they are in

criminal cases. All of the states in the survey

cover civil actions, at least some of the time,

for both probation and parole officers. A

substantial percentage, however, indicate

that they will not defend in all civil suits.

A. In Civil Liability Cases

Most states set few limitations on the types

of acts they will defend in civil suits, requiring only that the officer’s act or omission

occur within the scope of employment, as

they define it. Some states require, additionally, that the officer act in good faith. The

term “good faith” is ill defined in state tort

law, and the definition varies from state to

state. In some states, good faith means “not

grossly negligent”; in others, it means that

the officer has not violated a state rule or law;

in others, it denotes that the officer acted in

the honest belief that what he or she did was

proper and appropriate under the circumstances. In contrast, the definition of good

faith in Section 1983 (federal) cases is clear—

it means that the officer is not liable unless

he or she violated a clearly established statutory or constitutional right of which a reasonable person would have known.

In many states, if an officer’s behavior is

within state guidelines, the attorney general

may serve as the officer’s legal counsel in the

lawsuit. Many states have no other provisions for the defense of state employees. In

some states, however, if the particular act

comes under an applicable insurance policy,

the insurer’s counsel may undertake the

defense. Reliance on such insurance can be

risky, however, if policy limits are unrealistically low. In these cases, insurance carriers

sometimes simply pay the limit of their liability in court in lieu of defending a suit,

realizing that it can be less expensive for

them to settle the lawsuit. The officer could

be left unrepresented and exposed personally

for the balance of the claim. Moreover, the

officer and agency will bear the blemish of

having been held liable in a civil liability

case even if the case could perhaps have

been won if it went to trial.

Some states permit outside lawyers to be

hired at state expense to defend a state

employee. These states usually allow reimbursement by the state or agency for lawyers’

fees and court costs if the employee wins

the suit after the state’s attorney general’s

office has refused to defend the officer. On

the other hand, if the state does undertake

the defense of the officer and the individual

is found to have acted in bad faith, and

thus held liable, such officer may have to

reimburse the state for costs (in at least

three states). Thus, there are uncertainties

involved in obtaining legal representation

for state officials.

43

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The attorney general’s office has considerable discretion in undertaking the defense of

an officer sued in a civil suit. In those cases

in which the attorney general’s office refuses

to defend the officer, private legal assistance

might have to be obtained. As of the time

of the survey for the first edition, only two

states, California and Vermont, had procedures for appealing the state’s refusal to

defend the officer. Only California required

a judicial determination as to whether the

employee was entitled to legal assistance

from the state.

If known, the fact that the state refuses to

defend the officer could serve to prejudice

the judge or jury. However, the majority

of states, with the exception of Maryland,

Oklahoma, and Oregon, made no provision

for barring evidence of state refusal to

defend in the trial. This could be potentially

damaging evidence against the state employee because of the implication, warranted or

unwarranted, that the state found the case

to be outside the scope of the officer’s duty.

State survey results concerning defense of

probation/parole officers in civil cases are

presented in tables 4–1 and 4–2.

B. In Criminal Liability Cases

The picture is different if the probation or

parole officer is alleged to be involved in a

criminal action. Almost half of the states

did not undertake a defense of an officer. In

many states, the state becomes the prosecutor against an officer if the charges involve

criminal liability. A conflict of interest

44

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

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

Sometimes 29 59.2

No 0 0.0

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

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

Table 4–2. Defense of Parole Officers in Civil Cases

“If a parole officer in your state is sued in a civil case, will the governmental agency undertake the

defense of that officer?” (Number of states responding: 50.)

Number Percent

Yes 22 44.0

Sometimes 28 56.0

No 0 0.0
would thus prevent the state from representing the probation or parole officer. The

responses from several of the states in the

survey indicated that state legal representation would be at the discretion of the attorney general’s office. Others stated that the

situation had never arisen and that the policies were unclear. Very few states indicated

unequivocally that the state would undertake the defense of an officer if the case were

a criminal matter. State survey results concerning defense of probation/parole officers

in criminal cases are presented in tables 4–3

and 4–4.

■■■

II. ATTORNEYS’ FEES 

The discussion on attorneys’ fees must

be addressed under fees in state tort

cases and fees in Section 1983 cases because

the rules are different.

A. In State Tort Cases

The general rule in state tort cases is that

each party pays attorneys’ fees regardless of

who wins or loses. Example: A probationer

brings a state tort case against a probation

officer. Whether the probationer wins or

loses the case, he or she pays his or her own

lawyer. By the same token, whether the probation officer wins or loses, he or she pays

his or her own lawyer. In a few states, however, this rule differs, and the defendant may

be made to pay plaintiff’s attorneys’ fees if

he or she loses the case. This is the exception, however, rather than the general rule.

B. In Section 1983 (Federal)

Cases

The rule in federal cases is different and

deserves a more extended discussion. In

1976, Congress passed legislation providing

attorney’s fees for cases of this nature at the

federal level. The act, known as the Civil

Rights Attorney’s Fees Awards Act of 1976

45

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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
(Section 1988), allows the court to award

attorney’s fees to the prevailing party in

some types of federal civil rights suits.

The act provides:

1

In any action or proceeding to enforce a

provision of Sections 1981, 1982, 1983,

1985, and 1986 of 42 U.S. Code . . .

or Title VI of the Civil Rights Act of

1964, the Court, in its discretion, may

allow the prevailing party, other than

the United States, a reasonable attorney’s fee as part of the costs.

Prior to the passage of this act, an award of

attorneys’ fees was relatively rare. The passage

of this act made it more likely that a prevailing party in a federal civil rights suit can also

collect attorney’s fees, as well as damages or

injunctive relief, from the defendant.

2

The act allows an award of fees to the “prevailing party” in a federal action. The term

“prevailing party” has been broadly defined.

For example, an award of fees has been

found appropriate even where the parties

reached a voluntary settlement.

3 And in

Maher v. Gagne,

4 the U.S. Supreme Court

said that attorney’s fees may be awarded

when a party prevails in a consent decree,

with no judicial determination that federal

rights have been violated. This means that

even if the case is settled out of court, the

defendant may be made to pay attorney’s

fees. Even if the plaintiff does not succeed

on all the issues of the case, he or she can

still be the “prevailing party” for the purposes of Section 1988.5 A defendant who

does not actually “lose” a case can thus be

required to pay the plaintiff’s attorneys’ fees.

Moreover, the governmental agency or unit

that employed the individual sued can be

ordered to pay the attorney’s fees, even

though it is not a named defendant.

6

Under this act, prevailing probation/parole

officers may also be awarded attorneys’ fees

but not on the same basis as prevailing

plaintiffs. A plaintiff is usually awarded fees

because he or she is found to have won the

suit.

7 A defendant such as a public employee, however, must not only “win”; he or she

must show that the plaintiff’s suit was frivolous, unreasonable, or unfounded.8 The law,

therefore, tends to favor the person bringing

a lawsuit against the probation/parole officer. Although this may be harsh to government officers, it is not surprising because the

law was designed to deter unconstitutional

actions by government agencies and officers.

The Attorneys’ Fees Act appears to have

been expanded in a 1980 case. Originally,

Section 1983 and Section 1988 were applied

to violations of constitutional rights only.

However, the Supreme Court decided in the

case of Maine v. Thiboutot

9 that individuals

could sue for violations of any citizen’s rights

created under any federal statutes (in this

case, denial of federal welfare payments by

the state agency). Furthermore, the Court

ruled that successful plaintiffs could recover

legal fees from the losing parties. This decision may serve to provide individuals with

further means of bringing suit under federal

law beyond civil rights in such areas as

the administration of federal programs.

Probation and parole agencies that participate in federal programs potentially can be

subject to lawsuits under Section 1983 if

they violate federal laws applicable to these

programs and may have to pay attorney’s

fees for the other party if they lose the lawsuit. If the individual bringing the suit prevails, attorney’s fees may be awarded. 

Federal courts have adopted somewhat differing standards for determining the appropriateness of a fee award. According to a

United States Supreme Court case, the following factors are likely to be considered:10 ■ The time and labor required by the 

attorney.

■ The novelty and difficulty of the legal

questions presented.

■ The skill required to perform the legal

services.

46CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS
■ The preclusion of other employment by

the attorney due to acceptance of the case.

■ The customary fee in the community.

■ Whether the fee is case fixed or contingent

on winning the case.

■ Time limitations imposed by the client or

circumstances.

■ The amount involved and the results

obtained.

■ The experience, reputation, and ability of

the attorney.

■ The undesirability of the case.

■ The nature and length of the professional

relationship with the client.

■ Awards in similar cases.

Although no research is currently available,

it may be surmised that awarding attorney’s

fees to the prevailing party may have encouraged the filing of cases under Section 1983

instead of under state tort. Attorneys are

more likely to accept cases where they can

collect fees if they prevail. Case law shows

that attorneys’ fees awards in some cases may

grossly exceed damages awarded to plaintiffs.

For example, in one case, the Federal Court

of Appeals for the Eleventh Circuit awarded

$162,209.50 in attorneys’ fees and court

costs in a police case, although the damage

award was only $500 in compensatory and

$10,000 in punitive damages.11 In another

law enforcement case, the Federal Court

of Appeals for the Ninth Circuit upheld

an award of $66,535 in attorneys’ fees to a

plaintiff who was awarded only $1 in damages.12 In yet another case, the Federal Court

of Appeals for the Fifth Circuit approved the

award of $5,000 in attorneys’ fees for a $1

award in nominal damages.13 The $5,000

attorneys’ fees award, however, was reversed

by the United States Supreme Court on

appeal, the Court saying that although

plaintiff was a “prevailing party,” in such

cases, the “only reasonable fee is usually

no fee at all.”14

III. INDEMNIFICATION IN CASE OF 

LIABILITY

I

f an employee is held liable for his or her

actions, who pays for damages assessed by

the court? A majority of the states provide

for indemnification or reimbursement for

civil damages assessed against employees.

However, the amount that states are willing

to pay varies considerably. In addition, the

conditions under which the state will pay

differ and are sometimes unclear. Some states

set no limit on the amount of money they

will pay in a suit against a state employee.

The majority of states set some type of

limit.15 If the court awards the plaintiff an

amount larger than the maximum allowed

by the state, the employee will likely have

to pay the difference. The states, therefore,

range from not allowing indemnification to

setting no limit.

Although most states provide some form of

indemnification for officers who are sued,

this does not mean that the state will automatically indemnify. The majority of states

will help pay the judgment only if the act on

which the finding of liability is based was

“within the scope of employment,” whatever

that phrase may mean in a particular jurisdiction. State survey results concerning probation/parole officer indemnification are

presented in tables 4–5 and 4–6.

For procedural purposes, an important question is: Whose determination of good faith

is binding for purposes of indemnification

eligibility? In general, the determination is

made by either the state attorney general,

the court trying the case, or the state agency.

In some states, the court decision indicates

whether or not the employee acted in bad

faith. If, however, the state makes a pretrial

investigation to determine if the employee

is eligible for state legal representation, the

result of that investigation could potentially

47

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LEGAL

REPRESENTATION, ATTORNEYS’ FEES, AND INDEMNIFICATION
bind the state to indemnity, even if a subsequent court decision on the case finds that

the employee acted in bad faith. In some

states, the steps for determining good faith

are unclear; some indicated that the situation had not yet arisen with respect to probation/parole officers. In other states, only

the matter of scope of employment must be

determined, not the usually broader issue of

the presence or absence of good faith.

There are jurisdictions that, by law, exempt

officers from liability in state tort cases.

Other jurisdictions specifically provide that

plaintiffs sue the government employer, not

the officer, in tort cases. For example, federal

law states that in tort cases the government,

not the officer, is to be sued. By contrast, in

Section 1983 cases, the officer is to be sued,

not the federal government.16

In summary, a probation/parole officer who

is sued faces a number of uncertainties. He

or she may ask for and be provided with

legal assistance, depending on the state. If

the state has provision for indemnification,

the officer may have to undergo more than

one determination of good faith, in which

“good faith” might not be a well-defined

or consistently applied term. Despite these

determinations, a court ruling against an

employee may negate that claim to good

faith and consequently the claim to indemnification. Even if the officer is indemnified,

not all expenses may be covered, particularly

in states that place a limit on the amount of

indemnification. Finally, state assistance may

vary depending on whether the lawsuit is

brought in state or federal court. 

48

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

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
IV. LEGAL REPRESENTATION AND 

INDEMNIFICATION:

THE LAW IN TWO

STATES—TEXAS

AND KANSAS

The law on legal representation and

indemnification varies from one state

to another, in states that have such laws. The

laws of two states are summarized below to

illustrate how state laws do differ.

A. In Texas

In Texas, probation (juvenile and adult) and

parole officers are state officers for purposes

of representation and indemnification,

although they are considered local employees

for other purposes. Texas law provides that

the state attorney general’s office is obliged

to defend employees who are sued and the

state indemnifies employees who are held

liable.17 The state is required to pay damages

imposed on employees but only for official

acts or omissions, as determined by the

state attorney general’s office. The law also

requires the state to provide counsel in lawsuits where an employee is sued in connection with official conduct. It further provides

that notification must be given to the attorney general’s office within 10 days after the

probation/parole officer is served with notice

of the lawsuit.

Indemnification under Texas law is limited.

The state liability payment is capped at

$100,000 to a single plaintiff and at $300,000

to multiple plaintiffs if the liability resulted

from a single occurrence. Payment of damages

is limited to cases of personal injury, death,

or deprivation of a right or privilege. The

state will also pay damages up to $10,000

for damage to property arising from a single

occurrence. In the absence of provision to

the contrary, it may be presumed that this

covers damages resulting from litigation in

state and federal courts. It must be noted

that nothing prevents the state from paying

monetary damages beyond the above amounts

specified by law (unless proscribed in the

court decision), but the state’s obligation is

limited to what state law provides.

B. In Kansas

The situation in Kansas is complicated

somewhat by the structure of probation and

parole in that state. Parole officers are considered to be state officers employed by the

Kansas Department of Corrections. Thus,

under state law, parole officers are eligible to

be defended under the Kansas Tort Claims

Act.18 Legal defense would generally be

provided by the Kansas Department of

Corrections. Court services officers, who

supervise both adult and juvenile probationers, are also considered state officers even

though they are structurally under the

Kansas judicial branch. While clearly eligible

for legal defense under state law, it is unclear

whether defense would be provided by the

Kansas attorney general’s office or the specific

county/district in which the court services

officer works, especially in state tort cases.

The Kansas attorney general’s office will

provide representation for any state employee

sued in federal court. In both instances, the

statute requires that the employee must

request legal defense within 15 days of service of process or subpoena upon the employee

in the action. Refusal to provide defense may

occur under any one of the following conditions: (1) the act or omission was not within

the scope of the employee’s employment; (2)

the employee acted or failed to act because

of actual fraud or actual malice; (3) the

defense of the action by the governmental

entity would create a conflict of interest

between the governmental entity and the

employee; or (4) the request was not made

in accordance with statute as described

above. 

49

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REPRESENTATION, ATTORNEYS’ FEES, AND INDEMNIFICATION
Legal defense for community corrections officers is a bit more complicated. In Kansas, community corrections programs are established

either by single counties or interlocal agreements between multiple counties. While

funding for such programs is provided

by grants from the Kansas Department

of Corrections and/or the Kansas Juvenile

Justice Authority, officers are generally considered to be employees of the county or

counties who established the programs.

Thus, legal representation would generally

be provided by the county entities involved

or through liability insurance carried by the

county or program for such purposes. Each

set of circumstances will be different, so it is

important that the community corrections

officer ascertain the particular arrangement

that applies in his or her district.

Indemnification for state officers is permissible in Kansas for injury or damages proximately caused by an act or omission of the

employee acting within the scope of his or

her employment. The employee will not be

indemnified, however, for any punitive or

exemplary damages, or for any costs, judgments, or settlements that are paid through

an applicable contract or policy of insurance.19 It is also critical that the employee

cooperate in good faith in the defense of the

claim or risk loss of indemnification. Kansas

statute provides a cap of $500,000 for any

number of claims arising out of a single

occurrence or accident. 

■■■

V. PROFESSIONAL 

LIABILITY 

INSURANCE Since public employees in many states

might not be able to obtain legal representation or indemnification if they are

sued, professional liability insurance for

probation/parole officers becomes attractive.

It is a necessity in high-profile professions

like medicine and law. Although no recent

figures are available, in the survey for the

first edition of this publication, a minority

of states (30 percent) had purchased this

insurance for probation and parole officers.

The purchase of insurance is likely to depend

on the standards for the immunity doctrine

in the particular state or jurisdiction. It may

also depend on statutes legally authorizing

the government unit or agency to purchase

insurance, as authorization must exist to

take such action.20 Then there is always the

issue of who pays the premium. Some states

prohibit the payment of a professional insurance premium with public funds.21

Insurance for public employees is sometimes

rejected for fear it might encourage the filing

of lawsuits by citizens against public officers.

It is also assumed that the amount of damages awarded would increase if the judge or

jury become aware that the costs would be

borne by an insurance company rather than

by an individual or governmental unit.22 In

many jurisdictions, however, insurance ownership or governmental indemnification cannot be mentioned at a trial or hearing. In

addition, it can be argued that if insurance

coverage is available, the public would be

better served, in that the public officer

would better fulfill his duties if he were not

concerned with personal liability for acts

performed in good faith and in the scope

of his or her duties if the worry about civil

liability diminished.

Insurance appears to be desirable in jurisdictions where state legal representation or

indemnification is uncertain or nonexistent.

Insurance policies, however, cover only acts

performed within the scope of employment

and may require a demonstration of good

faith. In jurisdictions that do not provide for

insurance purchase, agencies might work for

the modification of statutes and policies so

that insurance for agency employees can be

obtained with public funds. State survey

results concerning probation/parole officer

liability insurance are presented in tables

4–7 and 4–8. 50CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS
SUMMARY

Legal representation and indemnification

are two real concerns of probation/parole

officers in liability cases. The survey for the

first edition of this monograph shows that

modes of representation and indemnification vary greatly among states, ranging from

guaranteed representation or indemnification to no formal policy whatsoever. Most

states that provide representation do so in

civil cases only, while others include criminal

cases as well. The Civil Rights Attorney’s Fees

Awards Act of 1976 allows courts to award

fees to the prevailing plaintiff in a civil rights

lawsuit. There is hardly any policy as to who

pays these fees. Some states pay; others do

not. Professional liability insurance provides

protection to probation/parole officers but

has inherent problems, such as who pays the

premium, will it encourage the filing of more

lawsuits, and whether or not an insurance

company is available to underwrite the policy.

Notes

1. 42 U.S.C. Sec. 1988 (1976).

2. Americans for Effective Law Enforcement,

Defense Manual: The Civil Rights Attorney’s Fees

Awards Act of 1976, at 3 (1979).

3. Americans for Effective Law Enforcement,

Defense Manual: Civil Rights Suits Against Police

Officers—Part II, at 61 (1979); Brown v.

Culpepper, 559 F.2d 274 (5th Cir. 1977).

4. Maher v. Gagne, 48 LW 4893 (1980).

5. Guajardo v. Estelle, 432 F. Supp. 1373

(S.D. Tex. 1977), modified 580 F.2d 748

(5th Cir. 1978).

6. Hutto v. Finney, 437 U.S. 678 (1978). 

7. Id.

8. Christianberg Garment Co. v. EEOC,

434 U.S. 412 (1978).

51

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LEGAL

REPRESENTATION, ATTORNEYS’ FEES, AND INDEMNIFICATION

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
9. Maine v. Thiboutot, 448 U.S. 1 (1980).

10. Hutto v. Finney, 437 U.S. 678 (1978).

11. Duckworth v. Whisenant, 97 F.3d 1393

(11th Cir. 1996).

12. Wilcox v. Reno, 42 F.3d 550 (9th Cir.

1994).

13. Farrar v. Hobby, 941 F.2d 1311 (5th

Cir. 1991).

14. Farrar v. Hobby, 61 LW 4033 (1992).

15. Committee on the Office of Attorney

General, Sovereign Immunity: The Tort Liability

of Government and Its Officials (September

1979).

16. See generally provisions of the Federal

Employees Liability Reform and Tort

Compensation Act of 1988, 28 U.S.C.

Section 1671.

17. See Chapter 104, Texas Civil Practices

and Remedies Code.

18. See Kan. Stat. Ann. 75-6108.

19. See Kan. Stat. Ann. 75-6109.

20. Texas Advisory Commission on

Intergovernmental Relations,

Intergovernmental Brief, Tort Liability

Insurance for Public Employees and Officials:

An Introductory Guide, at 8 (August 1978).

21. For example, Article 11, Section 57

of the General Appropriations Act for FY

1996–1997 prohibited the use of funds

under the Act for purchasing insurance to

cover claims under the Texas Tort Claim

Act. See unpublished opinion letter of Todd

Jermstad, Assistant General Counsel for the

Texas Department of Criminal Justice, dated

January 18, 1996.

22. W. Prosser, Handbook of the Law of Torts,

Fourth Edition (1971).

52

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS
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

SUMMARY

NOTES

CHAPTER 5

55

CHAPTER

5

PRESENTENCE/PREPAROLE INVESTIGATIONS AND

REPORTS

INTRODUCTION

Presentence and preparole investigations

are important for the offender. Often

such investigations determine how much

time an offender spends in prison (presentence) or whether an offender continues to

stay in prison (preparole). Offenders do not

lose all constitutional rights because of conviction; some rights are lost while others are

retained. Complicating an analysis of legal

issues is that the procedure, substance, and

use of presentence reports are governed by

state law in some states, but the procedure,

substance, and use of preparole reports is

often set by agency policy.

This chapter discusses the legal issues involved

in presentence and preparole reports based

on consideration of constitutional rights, state

laws, and agency policies.

■■■

I. PROBATION 

PRESENTENCE

REPORT ISSUES

An examination of state court decisions

shows that the states generally follow

federal court decisions in determining state

use of presentence reports. This is no surprise, since most of the federal cases are

decided on due process grounds, a constitutional issue, thus forcing the states to follow

federal decisions.

There are states that have afforded defendants greater protections than those required

by the federal courts. But recent federal

activity makes federal courts the leader on

various presentence report legal issues. An

examination of the pertinent federal case law

should serve to identify the trends and patterns most jurisdictions follow and use.

A. Contents

The purpose of the presentence report is to

help the judge impose the most appropriate

sentence by providing him or her with information about the defendant’s life and characteristics, and, if customarily or specially

requested, the informed recommendation

of the probation officer. The report helps

implement the modern concept that rehabilitation is promoted by individualized sentences. Because the stage of deciding guilt

or innocence has passed, it has been held to

be reasonable to allow the judge to exercise

wide discretion as to the sources and types

of information to be used in sentence selection.1 At the federal level, the Federal Rules

of Criminal Procedure require presentence

reports to include information about the

defendant’s history and characteristics,

including any prior criminal record, financial condition, and any circumstances that,

because they affect the defendant’s behavior,

may be helpful in imposing sentence or in

correctional treatment.2

Studies examining the actual use of these

reports indicate some variation in perceived

value and use, but in general studies show a

high correlation between the report recommendations and the sentence imposed.3

Given its importance, defense counsels feel

that due process, meaning fundamental

fairness, requires their access to the report.

Lawyers maintain that there is a distinct liberty interest involved at the presentencing

stage that does not always exist after sentence

has been passed. In general, however, a judge

may appropriately conduct an inquiry broad

in scope, largely unlimited either as to the

kind of information he or she may consider

or the source from which it may come.4

1. General 

State courts and state statutes either require

or allow a variety of data in the presentence

report. The officer must be aware of the
56CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

local rules on this subject because they differ. Jurisdictions vary, for example, on the

use of criminal justice system contacts that

were dismissed or did not result in conviction. In general, however, it is safe to assume

that if the information is relevant to the

particular case, inclusion in the presentence

report will be permitted. Rules of evidence,

so important in criminal trials, are not

applied strictly in presentence reports. Thus,

in many jurisdictions, hearsay evidence and

evidence illegally obtained by the police may

be included in the report. Judges may prescribe, however, the kind of information

they want excluded—usually based on their

concept of fundamental fairness. Some states

specify, by law, what information may be

included in the presentence report; other

states leave that decision to judges.

2. Victim Information 

Several jurisdictions now allow the inclusion

of information relating to the victim in a

presentence report. Such information is

commonly termed the “victim impact statement,” but the exact terminology varies by

state statute or judicial rule. Generally, this

information includes an itemization of any

economic loss suffered by the victim, an identification of any physical injury, including

the seriousness and permanence of injury, a

description of any change in the victim’s personal welfare or familial relationships as a

result of the offense, an identification of any

request for psychological services initiated by

the victim as a result of the offense, and any

other information related to the impact of

the offense upon the victim that the court

requires. The contents of these statements

vary by jurisdiction, but are allowed in whole,

or in part, in Colorado,

5 Delaware,6 District

of Columbia,

7 Idaho,8 Indiana,9 Louisiana,10

Maryland,11 Minnesota,12 Mississippi,13

Missouri,14 Montana,15 Nebraska,16 New

Jersey,17 New York,18 North Carolina,19

North Dakota,20 Oregon,21 Puerto Rico,22

Vermont,23 Virginia,24 and Wisconsin.25

3. Hearsay 

“Hearsay” is information that is offered as a

truthful assertion that does not come from the

personal knowledge of the person stating the

information, but from knowledge that person received from another. Generally, it is not

admissible in trials under the rules of evidence

because the truth of the facts asserted cannot

be tested by cross-examination of the witness.

Decided cases make it clear, however, that

hearsay is not in and of itself constitutionally

objectionable in a presentence report.26 The

purpose of the report is to aid the judge in

determining an appropriate sentence; hence,

it is important that the judge “not be denied

an opportunity to obtain pertinent information by a requirement of rigid adherence to

the restrictive rules of evidence properly applicable at trial.”27 In addition, presentence

reports are not restricted in their content to

established fact.28 As the report is usually not

compiled by persons trained in the law, it is

up to the judge to exercise both proper and

wide discretion as to the sources and types

of information used to assist the court. This

does not give the court unlimited discretion, however. The defendant must have

an opportunity to rebut information that

is claimed to be false.

4. Confrontation and Cross-Examination 

Some jurisdictions allow the defendant to

cross-examine the presentence report author

or experts relied upon in compiling the

report. The more damaging the information,

the more likely it is that the court will permit

cross-examination. Jurisdictions vary in

restricting of the defendants’ right to confront sources of adverse information. Rulings

in the Federal Court of Appeals for the

Fourth and Seventh Circuits have held that

defendants have no right to cross-examine

ex parte (on behalf of only one party) communications between probation officers and

the court because the officer is acting as “the

court’s neutral agent.”29 Similarly the Federal

Court of Appeals for the Ninth Circuit has

held that cross-examination of probation
57

CHAPTER

5

PRESENTENCE/PREPAROLE INVESTIGATIONS AND

REPORTS

officers is not allowed at pretrial conferences

when the officer merely “explains the basis

for his or her recommendation without straying into the area of advocacy or argument.”30 

5. Criminal Record 

A presentence report is not considered manifestly unjust simply because it contains a

history of a defendant’s prior arrests and/or

charges.31 Information relating to prior criminal activity is likely to be considered critical

and, therefore, subject to mandatory disclosure. More recently, jurisdictions are allowing

the use of juvenile records in the presentence

report. A few states, including Kentucky,32

Massachusetts,33 Montana,34 and Utah,35

allow such records. 

6. Suppressed Evidence 

The Supreme Court under Chief Justice

William H. Rehnquist has shown some disfavor with the exclusionary rule. This courtdeveloped doctrine prohibits the use in a

criminal trial, as direct evidence of the defendant’s guilt, of information obtained in violation of the defendant’s fourth, fifth, or sixth

amendment rights. The Court has consistently resisted efforts to extend the remedy

of exclusion or suppression of such evidence

to proceedings other than the trial itself. For

example, the Court has allowed suppressed

material to be considered by a grand jury.36

The current United States Supreme Court

majority argues that the rule suppressing

illegally obtained evidence is justified by the

need to deter police misconduct. In cases

where it has held that the extension of the

exclusion remedy is not warranted, the

Court has said that additional deterrence

of official misconduct cannot be obtained

without undue harm to the public interest.

When examined in the context of a probation revocation hearing, the argument may

be sound in that the new proceeding may

be so remote from the misconduct that gave

rise to the trial suppression that no additional deterrence can be attained through exclusion from different proceedings.

It can also be argued, however, that sentencing is so closely related to the trial that use

of evidence illegally obtained is improper.

While there is a general tendency in the courts

to permit all uses of suppressed information

once guilt has been determined, the United

States Supreme Court has not ruled specifically on the propriety of its inclusion in presentence reports. Note, however, that in a

1998 case, Pennsylvania Board of Probation

and Parole v. Scott, the Court held that the

application of the exclusionary rule is not

required by the Constitution in parole revocation proceedings and, therefore, its application is governed by state rules.37 Probation

officers should ascertain the current rule in

their jurisdiction. Those rules are binding

on them.

B. Disclosure

1. In General 

On the federal level, the Federal Rules of

Criminal Procedure38 require a federal judge

to disclose to a defendant or defendant’s

counsel all presentence information relied

upon in sentencing, excluding:

■ Any diagnostic opinions that, if disclosed,

might seriously disrupt a program of

rehabilitation;

■ Sources of information obtained upon a

promise of confidentiality; or

■ Any other information that, if disclosed,

might result in harm, physical or otherwise, to the defendant or other persons.

The rule does not give the defendant access

to a codefendant’s presentence report.39

The general rule is that the court shall disclose

such information in the report as was taken

into consideration by the court. However,

some states provide by law that the information may be given to counsel rather than to

the defendant personally. Counsel may be

given access with instructions not to disclose

its content to the defendant.40 Partial access
58CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

that excludes information for reasons other

than those listed above is insufficient access.41

A variation of the application of the rule is

found in the Federal Court of Appeals for

the First Circuit, where the judge may either

identify for the record and disavow any information not relied upon or disclose those portions of the report that were relied upon.42

While the trend is toward disclosure, the

United States Supreme Court has not considered the failure or refusal to disclose the

contents of the presentence report as violative of constitutional rights. However, in a

Florida case involving imposition of the

death penalty, the Court did consider it a

denial of due process where the sentence was

passed on the basis of information that the

defendant had no opportunity to deny or

explain. The case does not indicate that similar requirements would hold in a noncapital

situation, and at least one Florida court has

refused to apply it in a noncapital case.43

A few cases have specifically held that there

is no constitutional right of access to a presentence report.44 But most jurisdictions

require disclosure under a statute or rule of

court. The jurisdictions so holding include

Alabama,45 Alaska,46 Arizona,47 Colorado,48

Connecticut,49 Delaware,50 District of

Columbia,51 Florida,52 Hawaii,53 Idaho,54

Illinois,55 Indiana,56 Kansas,57 Louisiana,58

Maine,59 Maryland,60 Massachusetts,61

Michigan,62 Minnesota,63 Montana,64

Nevada,65 New Hampshire,66 New York,67

North Carolina,68 Ohio,69 Oregon,70 Pennsylvania,71 Puerto Rico,72 South Dakota,73

Tennessee,74 Utah,75 Virgin Islands,76

Virginia,77 Washington,78 and Wisconsin.79

Caution is suggested here as these jurisdictions utilize various restrictions on access,

such as limiting the disclosure of the sentencing recommendation, diagnostic opinions,

victim statements, information obtained

under the promise of confidentiality, and/or

any information that, if disclosed, may harm

a third party.

State statutes or rules have been held to leave

the matter of disclosure to the discretion

of the court in Georgia, Iowa, Maryland,

Nebraska, Oklahoma, Texas, and Vermont.80

2. Disclosure to Third Parties 

Although Rule 32(c) of the Federal Rules of

Criminal Procedure sets the federal standard

for release of presentence reports to defendants, their attorneys, and the prosecuting

attorneys, it remains silent as to the disclosure to various “third parties.” No statute or

rule requires that presentence reports remain

confidential after the sentencing hearing has

occurred.81 Third parties are defined as persons or entities other than the courts, the

Parole Commission, the Bureau of Prisons,

and probation officers. The general trend

both at the state and federal levels has been

that presentence reports are confidential and

not subject to third party disclosure. More

recently, however, the Federal Courts of

Appeal for the Second, Fifth, Seventh and

Ninth Circuits and a few state statutes have

addressed the possibility of disclosure to persons outside the realm of the court.

The states of Arizona, Hawaii, Kansas,

Louisiana, Montana, and New Jersey have

addressed some aspect of third party disclosure in statutes or rules of the court. Arizona

allows the crime victim to inspect the presentence report once it is available to the

defendant.82 Louisiana also allows disclosure

to the victim or designated family member.83

Montana allows the prosecutor to disclose

the contents of the presentence report to

the victim.84 Hawaii allows disclosure to

researchers.85 Kansas statutes state that the

presentence report shall become part of the

court record and shall be accessible to the

public, except the official version, the defendant’s version, the victim’s statements, any

psychological reports, and any drug and

alcohol reports are exempt form public disclosure.86 New Jersey allows disclosure of the

defendant’s financial records to its Victims

of Crime Compensation Board.87
59

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PRESENTENCE/PREPAROLE INVESTIGATIONS AND

REPORTS

The Federal Court of Appeals for the

Second Circuit addressed the issue of third

party disclosure in United States v. Charmer

Industries and Peerless Industries.

88 Charmer

involved disclosure of a presentence report

prepared by the United States Probation

Service to the Arizona State Attorney

General. The report contained information

about defendant Peerless Importers, a major

wholesale liquor distributor who had entered

a plea of nolo contendere in an antitrust case

in New York. The report was requested, and

sent without prior judicial approval, to the

Arizona Attorney General who was preparing, with the Arizona Department of Liquor

Licenses and Control, a liquor license revocation proceeding against a subsidiary of

Charmer and Peerless Industries. The report

included financial data collected from

Peerless, a description of the government’s

contentions against the company, and

hearsay information from unidentified law

enforcement officers. The Arizona Attorney

General inquired as to whether the presentence report could become part of the public

record in Arizona.

The Federal Court of Appeals for the Second

Circuit issued an injunctive order requiring

the Arizona Attorney General to return to

the court the presentence report and all

copies and extracts made of it, and prohibited the publication or use of any portion of

the report that was not already publicly available. The court reasoned that allowing public

availability of presentence reports would

“likely inhibit the flow of information to the

sentencing judge.”89 The court stated that in

order for a presentence report to be disclosed

to a third party, the party must make “a particularized showing of a compelling need.”90

Similarly, the third party must demonstrate

that disclosure of the report is required “to

meet the ends of justice.”91

The Federal Court of Appeals for the Ninth

Circuit relied upon the “compelling need to

meet the ends of justice” standard when it

allowed third party disclosure of a presentence report to the estate of a deceased man

and a California town’s newspaper.92 The

case stemmed from the murder of a former

county district attorney by a man he had

successfully prosecuted for arson some 30

years prior to the murder. Soon after the

killing, the murderer committed suicide to

avoid capture by the police. Although the

court stated that it does not suggest that presentence reports should be released to third

parties routinely, it held that the unique

nature of the case allowed the third party

disclosure compelling needs standard to be

met. Disclosure of the presentence report to

the estate of the man murdered was based

upon the estate’s argument that it required

disclosure so that it could determine

whether it had a cause of action for negligence based on the failure of the probation

office to warn the deceased of the threat

posed to him by the murderer and that this

information could not be obtained from any

other source.93 The court found the newspaper’s assertion that disclosure would serve

the public interest by informing the public

about the sentencing process was valid and

thus met the disclosure standard. The interest in disclosure asserted by the newspaper

was found by the court to be rooted in the

common law right to inspect judicial records

and documents.94

The common law right of the media to

inspect judicial records that was relied upon

by the Ninth Circuit was the basis of an

Illinois newspaper’s request for a presentence

report disclosure in the Federal Court of

Appeals for the Seventh Circuit case, United

States v. Corbitt.

95 The case stemmed from

the conviction of a former Illinois police

chief of three counts of extortion and racketeering. During the sentencing phase of the

trial, the presiding judge imposed a lesser

sentence than was recommended in the presentence report, due, in part, to numerous

letters written by public officials seeking

leniency for the former chief. Citizens of the

town and the Board of Trustees, apparently

disconcerted by the downward departure,

expressed a strong interest in learning which
60CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

public officials had written letters. The

Board of Trustees sent a letter to the judge

asking for public access to the letters written

by the town officials. Similarly, a newspaper

covering the case moved to secure release of

the presentence report and the letters relied

upon by the judge in the downward departure from the guidelines at sentencing. The

newspaper argued that the entire criminal

proceeding was affected with a public interest and that the public had an especially

strong interest in learning what factors had

persuaded the judge to impose what was

seen as a very lenient sentence. The Seventh

Circuit allowed the release of the letters

because the defendant did not challenge

the disclosure of the letters on appeal, but

denied disclosure of the presentence report.

The court held that such would not promote effective functioning of the probation

office and that disclosure would constitute a

positive hindrance to the probation office’s

performance of its obligation to provide

the sentencing court with a comprehensive

analysis of the defendant’s character.96 The

court stated that the public’s interest in the

Ninth Circuit case described previously is

of a “different order” than that of the public

interest in this case.97 Furthermore, the court

held that news organizations seeking access

to a presentence report must make a substantial, and specific, showing of need for

disclosure before a court may allow public

inspection of the report.98

In 1995, the Federal Court of Appeals for

the Fifth Circuit decided a third-party disclosure case in United States v. Huckaby.

99

Huckaby, a state district court judge in

Louisiana, pleaded guilty to one misdemeanor count of failing to file an income

tax for the year 1987. During the presentence investigation, the probation office

concluded that Huckaby had not filed any

federal income tax returns for nearly 12

years. The Internal Revenue Service estimated the total taxes owed by him for the years

1981 to 1992 at approximately $146,311.

The prosecution of this case was highly

publicized in the judge’s hometown of

Shreveport, Louisiana. According to the

trial court, Huckaby, his friends, and some

Shreveport officials and community leaders

contended that the reason he (Huckaby) was

being singled out for prosecution was that

he was black and that he had raised to a

position of power within the community.

The trial judge, apparently dismayed at the

contentions, took the unusual step of filing

the presentence report into the public

record. The judge then sentenced Huckaby

to a 12-month term of imprisonment, a fine

of $5,000, and a 1-year term of supervised

release. The Federal Court of Appeals for

the Fifth Circuit upheld the disclosure, but

required that the portion of the presentence

report titled “Offender Characteristics,” the

objections of the defendant, and the probation officer’s responses to the objection be

removed from the record. The court held

that the compelling necessity of relieving

racial tension, coupled with the need for the

revelation of facts found in the presentence

report that would persuade the public of the

defendant’s culpability, justified disclosure. 

In summary, it is most likely that all or part

of every presentence report will be disclosed

to the defendant or his counsel as a result of

state statute, court rule, or the exercise of

judicial discretion. It is not clear, however,

what, if any, portions of the presentence

report will be made available to interested

third parties. The probation officer should

exercise care in selecting material for inclusion in a report and making sure any information included is accurate. Concerning

disclosure, in case of doubt, the better practice is to give the presentence report to the

judge and leave the issue of disclosure to

him or her.

The officer should exercise care to avoid

tort, and possibly criminal, liability and to

prevent damage to the interests of justice

he or she is sworn to advance. Probation or

parole officers should know that intentionally including inaccurate information in a

report with knowledge of its falsity or with

reckless disregard for its truth or falsity
61

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REPORTS

could make them liable to the defendant.

In addition to defamation-based torts, other

intentional torts are possible. Additionally,

negligence charges have been brought when

a defendant could allege that unprofessional

care was exercised in report preparation.

C. Officers Are Generally

Immune From Civil Liability

When Preparing Presentence

Investigation Reports

Several state and federal courts of appeal

have specifically addressed liability issues

against probation officers who have been

accused of including false and inaccurate

presentence reports. The courts, including

the Federal Courts of Appeal for the Ninth

and District of Columbia Circuits, have all

rejected liability claims citing the historic

quasi-judicial immunity enjoyed by probation officers in the preparation of presentence reports.100 Similarly, federal district

courts in New York101 and Pennsylvania,102

and the Ohio State Court of Appeals103 have

granted officers absolute immunity. As evident in these decisions, most courts have

held that probation officers have the same

immunity (absolute) as judges when preparing presentence investigation reports. The

only exception is if the falsehoods or inaccuracies are included due to malice or ill will

on the part of the probation officer.

The Federal Court of Appeals for the Fifth

Circuit, in Maynard v. Havenstrite, 727 F.2d

439 (5th Cir. 1984), found liability where an

inaccurate presentence report was not shown

to the plaintiff prior to sentencing. The defendants, a Chief U.S. Probation Officer and a

federal probation officer, were granted absolute

immunity from monetary damages. However,

the appellate court held that, where administrative remedies were exhausted, the officers

were not necessarily immune from an action

for declaratory and injunctive relief.

But the harm to the public interest can be

more substantial. It has long been the rule

that a sentence cannot be based on false

information.104 When a defendant is sentenced on the basis of a report that is materially false or unreliable, that person’s right

to due process is violated.105 The remedy

usually invoked in such cases is the vacation

of the sentence imposed and remand for

presentencing. Civil liability, however, is

usually not imposed, except if the officer

acted with malice or ill will.

■■■

II. PREPAROLE 

INVESTIGATION

AND REPORT ISSUES

The major issue that arises out of preparole investigation concerns the extent

to which prisoners are given access to files

containing information about them. When

this issue has been litigated, courts have had

to resolve three questions:

■ Does any applicable statute or administrative rule provide access?

■ Does the prisoner have a right to due

process in connection with the parole

release proceedings?

■ If there is such a due process right, is file

access encompassed within it?

The tradition under which courts operate

requires them to settle cases on nonconstitutional bases whenever possible. Recent 

litigation has granted file access to federal

prisoners, although suits concerning the contours of the statutory right are still possible.

A. Federal Prisoner File Access

The Parole Commission and Reorganization

Act of 1976106 provides that a federal prisoner shall be given reasonable access to

any report or other document the Parole

Commission will use in making its release

decision. Not all file material need be

released; the material that may be withheld
62CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

is the same kind of information a federal

court need not disclose to a defendant in

connection with sentencing: ■ Diagnostic opinions that, if made known

to the eligible prisoner, could lead to a serious disruption of his institutional program;

■ Any document that reveals sources of

information obtained upon a promise of

confidentiality; or

■ Any other information that, if disclosed,

might result in harm, physical or otherwise, to any person.

B. State Prisoner File Access

Where there is a state statute, or parole

board or other rule, that grants file access to

a state prisoner, the scope of potential litigation is restricted to issues of rule compliance

and the applicability of any exceptions that

limit the granting of access. In the absence

of such a provision, however, file access can

be secured through litigation only by establishing that the prisoner has a 14th amendment right to due process in parole release

decisionmaking, and that the right includes

file access. The Supreme Court has addressed

the first branch of that inquiry.

1. The Greenholtz Case—Due Process

Applies? 

The 14th amendment bars states from

depriving a person of “liberty” without due

process of law. What does “liberty” mean

in the parole release context? When the

Supreme Court took up that question in

1979, the federal courts of appeal were sharply

divided. The Federal Courts of Appeals for

the Third, Fifth, Sixth, Ninth, and Tenth

Circuits107 had held that “liberty” was not

involved and that due process rights were

therefore inapplicable. But the Second, Fourth,

Seventh, and District of Columbia Circuits108

had reached the opposite conclusion. This

controversy was settled in Greenholtz

.

In Greenholtz v. Inmates of the Nebraska Penal

and Correctional Complex

,

109 the Supreme

Court held that unless a state law creates a

reasonable expectation that the prisoner will

be paroled, the prisoner’s constitutional “liberty” is not affected by the releasing process

and no federal due process right applies.

The Court said:110

That the state holds out the possibility

of parole provides no more than a mere

hope that the benefit will be obtained

. . . to that extent the general interest

asserted here is no more than the inmate’s

hope that he will not be transferred to

another prison, hope which is not protected by due process . . . . 

Because the Nebraska law provided that the

parole board “shall” release a parole-eligible

prisoner “unless” certain antirelease factors

were found to exist,111 the Court held the

statute created the necessary reasonable

expectation and that due process applied.

By grounding its conclusion on the particular wording of the Nebraska law, the Court

assured that decisions about other states would

have to be made on a case-by-case basis.

2. Sandin v. Conner—The Greenholtz

Standard Is Rejected 

In the 1995 United States Supreme Court

case, Sandin v. Conner, the court gave reasons

for abandoning the “mandatory language”

standard for prisoner due process cases.112

Sandin, a prison case, held that the courts

had “impermissibly shifted the focus of the

liberty interest inquiry from one based on

the nature of the deprivation to one based

on language of a particular regulation.”113

This shift in focus led to prisoners searching

state and federal statutes and regulations

upon which liberty interests claims could

be made. The Court then held that liberty

interest principles established in earlier cases,

such as Wolff v. McDonnell, 418 U.S. 539,

should be relied upon in establishing due

process rights, rather than the evolving

“mandatory language” standard used in

Greenholtz. Under Wolff, the proper standard

is the nature of the deprivation and must
63

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PRESENTENCE/PREPAROLE INVESTIGATIONS AND

REPORTS

balance the needs of prison management

concerns with the prisoner’s liberty in determining the amount of liberty due.

Thus the standard of liberty interest leading

to due process set in Greenholtz (holding that

protected liberty interest may be created by

the wording of state law, rules, or regulations)

was rejected, indicating a return to the old

Wolff standard. Since access to parole files

involves prisoners, Conner would likely apply

in prisoner access to file cases in instances

where the wording of state law appears to

create a liberty interest that is to be protected

by due process.

3. Does Due Process Include Access to File? 

Although the 5th and 14th amendments refer

to “due process of law,” the Constitution

nowhere defines that term or gives it substance. A short definition of due process is

“fundamental fairness.” But what does that

mean? In modern litigation, due process has

been treated as a flexible concept that derives

its meaning from the nature and weight of

the competing rights and interests at stake in

a particular proceeding. In the first parole

case it fully considered, the Supreme Court

applied such a balancing analysis to determine parolees’ rights in revocation cases.114

Lower courts took this as a signal (erroneously, as we now know) that due process

should apply—to other parole proceedings—and began the weighing process to

give content to the concept in a variety of

contexts. Although commentators concluded

that due process embraced file access,115 the

courts were not so willing to do so. Thus,

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 protections, the disclosure of the parole file was

not constitutionally required.

Likewise in Franklin v. Shields (also before

Greenholtz), the Federal Court of Appeals for

the Fourth Circuit stated “we discern no constitutional requirement that each (state) prisoner receive a personal hearing, have access to

his files, or be entitled to call witnesses in his

behalf to appear before the Board. These are

all matters which are better left to the discretion of the parole authorities.”117

But in Walker v. Prisoner Review Board (after

Greenholtz),118 where the State Board of

Parole acted in violation of the state Rules

Governing Parole, failure to allow inmate

access to his file was ruled an infringement

of due process.

■■■

III. RIGHT TO

NOTICE OF A PAROLE

HEARING

I

f the prisoner under Conner can establish

a liberty interest in parole, notice

becomes a fundamental procedural right.

Even without statutory provision for notice,

courts could be expected to require it. The

nature of the requirement would be functional: time to obtain evidence, inspect the

file, and challenge adverse evidence—as permitted within the particular jurisdiction.

Again, if the prisoner can establish a liberty

interest under Conner, notice would be

meaningless without the right to present evidence at the hearing. However, such a right

does not necessarily require personal appearance.119 Functional input into the decisionmaking process would likely satisfy the court.

■■■

SUMMARY

This chapter examines probation presentence reports and preparole investigation reports. In general, the content of the

probation presentence report is open ended,
64CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

guided by the general rules of good faith,

reasonableness, and germaneness. The trend

across jurisdictions is toward disclosure of

the report’s content, at least to legal counsel;

however, most jurisdictions do not recognize

a constitutionally based right to disclosure.

Generally, state statute law or court rulings

regulate disclosure.

The section on parole focuses on the effects

of the Greenholtz and Sandin cases. The main

holding in Greenholtz is that due process does

not apply to parole release proceedings unless

a state law creates an expectation that parole

will be granted, thereby establishing a liberty

interest. This mandatory language standard

has come into question, however, with the

more recently reestablished due process standard in Sandin v. Conner. Nevertheless, due

process protections must generally come

from state statute and/or administrative regulations and are not generated by the United

States Constitution. Thus, access to the preparole reports and other files is dependent on

statute or application of the balancing test

weighing the needs of prison management

versus the nature of inmate deprivation.

Notes

1. Williams v. New York, 337 U.S. 241 (1949).

2. U.S.C.S. Fed. R. Crim. P. Rule 32 (2000).

3. For three different views on the impact of

presentence reports in the sentencing process, see

J. Hogarth, Sentencing Project: An Experiment

in the Use of Short Form PreSentence Reports for

Adult Misdemeanants (1971); R. Carter and L.

Wilkins, Some Factors in Sentencing Policy, 1967

J. Crim. L. C. & P. S. 503.

4. United States v. Tucker, 404 U.S. 443 (1972).

5. C.R.S. 16-11-102 (1999).

6. D.C. Ct. R. Ann. Rule 32 (2000).

7. D.C. SCR-Crim. Rule 32, 32.2 (2000).

8. Idaho Code Sec. 20-220 (1999).

9. Ind. Code Ann. Sec. 35-38-1-12, 13 (1999).

10. La. Code Crim. Proc. art. 875, 877 (2000).

11. Rule 4-341.

12. Minn. Stat. Sec. 609.115 (1999); D. Minn.

LR 83.10.

13. Miss. Code Ann. Sec. 47-7-9; URCCC Rule

11.02 (2000).

14. R.S. Mo. Sec. 217.760, .762; Sec. 557.062.

15. Mont. Code Ann. Sec. 46-18-111, 112, 113.

16. R.R.S. Neb. Sec. 29-2261 (2000).

17. N.J. Stat. Sec. 2c:44-6 (2000).

18. N.Y. C.L.S. C.P.L. Sec. 390.20, .30, .40, .50

(1999).

19. N.C. Gen. Stat. Sec. 15A-1332, 1333.

20. N.D.R. Crim. P., Rule 32.

21. O.R.S. Sec. 137.077, .079 (1997).

22. 34 L.P.R.A. App. 2 R. 162.1 (1997).

23. 28 V.S.A. Sec. 204 (2000).

24. Va. Code Ann. Sec. 204 (2000).

25. Wis. Stat. Sec. 972.15 (1999).

26. State v. McKinney, 7 Or. App. 248, 489 P.2d

(1971); State v. Woolery, 16 Or. App. 180, 517

P.2d 1212 (1974); People v. Books, 95 Mich.

App. 500, 291 N.W.2d 662 (1980); State v.

Mason, 107 Idaho 706, 692 P.2d 350 (1984);

State v. Flynn, 675 S.W.2d 494 (Tenn. Crim.

App. 1984); State v. Morris, 750 S.W.2d 746

(Tenn. Crim. App. 1987); O’Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491, cert.

denied, 488 U.S. 871 (1988); State v. Eubank,

114 Idaho 635, 759 P.2d 926 (Ct. App. 1988);

United States v. Fernandez-Vidana, 857 F.2d 673

(9th Cir. 1988); United States v. Kerr, 876 F.2d

1440, 1445 (9th Cir. 1989); United States v.

Petty, 982 F.2d 673 (9th Cir. 1993); United
65

CHAPTER

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PRESENTENCE/PREPAROLE INVESTIGATIONS AND

REPORTS

States v. Rocha, 1 F.3d 950 (10th Cir. 1993);

United States v. Sustaita, 1 F.3d 950 (9th Cir.

1994); United States v. Anaya, 32 F.3d 308

(7th Cir. 1994).

27. Williams v. New York, 337 U.S. 241, 247

(1949).

28. Farrow v. United States, 580 F.2d 1339

(9th Cir. 1978).

29. United States v. Johnson, United States v.

Smith, 935 F.2d 47 (4th Cir. 1991); United

States v. Jackson, 886 F.2d 838, 844 (7th Cir.

1989).

30. United States v. Govan, 152 F.3d 1088 (9th

Cir. 1998).

31. The presentence report in Williams v. New

York contained such data; see also United States

v. Graves, 785 F.2d 870 (10th Cir. 1986).

32. Schooler v. Commonwealth, 628 S.W.2d

885 (Ky. Ct. App. 1981).

33. A.L.M. R. Crim. P. Rule 28 (1999).

34. Mont. Code Ann. Sec. 46-18-111, 112, 113

(1999).

35. State v. McClendon, 611 P.2d 728 (Utah

1980).

36. United States v. Calandra, 414 U.S. 338

(1974).

37. Pennsylvania Board of Probation and Parole

v. Scott, 118 S. Ct. 2014 (1998).

38. U.S.C.S. Fed. R. Crim. Proc. Rule 32

(2000).

39. United States v. Martinello, 556 F.2d 1215

(5th Cir. 1977).

40. United States v. Long, 411 F. Supp. 1203

(E.D. Mich. 1976).

41. United States v. Hodges, 547 F.2d 951

(5th Cir. 1977).

42. United States v. Piccard, 464 F.2d 215

(1st Cir. 1972).

43. Levin v. State, 348 So. 2d 1189 (Fla. 4th

D.C.A. 1977); McClendon v. State, 589 So. 2d

352 (Fla. App. 1991). 

44. Colo. Rev. Stat. 16-11-102 (1999); Ga.

Code Ann.

45. Ala. R. Crim. P. Rule 26.5 (1998).

46. Alaska R. Crim. P. Rule 32.1 (2000).

47. Ariz. R. Crim. P. Rule 26.6 (2000).

48. Colo. Rev. Stat. 16-11-102 (1999).

49. Conn. R. Ct. Rule 9 (2000).

50. Del. R. Ann. Rule 32 (1999).

51. D.C. Ct. R. Ann. R. 32 (2000).

52. Fla. R. Ct. Serv. Rule 88.1 (2000).

53. Michie’s Haw. Rev. Stat. Ann. HRS Sec.

706-604 (1999).

54. Idaho Code Sec. 20-220 (1999); Idaho Ct.

R. Ann. Rule 32 (1999).

55. Ill. Comp. Stat. Ann. Sec. 730 ILCS 5/5-3-4

(2000).

56. Ind. Code Ann. Sec. 35-38-1-12 (1999).

57. Kan. Stat. Ann. Sec. 21-4714, Sec. 21-4605

(1999).

58. La. Code Crim. Proc. art. 877 (2000).

59. Me. R. Ct. Rule 132 (1999).

60. Md. R. Ann. Rule 4-341 (1999).

61. Mass. R. Crim. Proc. Rule 28 (1999).

62. Mich. Stat. Ann. Sec. 28.1144 (1999).

63. Minn. Stat. LR 83.10 (1999).
66

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

64. Mont. Code Ann. Sec. 46-18-113 (1999).

65. Nev. Rev. Stat. Ann. Sec. 176.156 (2000).

66. N.H. Rev. Stat. Ann. Sec. 651:4 (1999).

67. N.Y. Consol. Law, Crim. Proc. Law Sec.

390.50 (1999).

68. N.C. Gen. Stat. Sec. 15A-1333 (1999).

69. Ohio Rev. Code Ann. Sec. 2951.03

(Anderson 1999).

70. Or. Rev. Stat. Sec. 137.077 (1997).

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

72. P.R. Laws Ann. tit. 34, Rule 162.1 (1997).

73. S.D. Codified Laws Sec. 23A-27-7 (2000).

74. Tenn. Code Ann. Sec. 40-35-208 (1999).

75. Utah Code Ann. Sec. 76-3-404 (1999).

76. V.I. Ct. Rules Ann. Rule 32.0.1 (1999).

77. Va. Code Sec. 19.2-299 (1999).

78. Wash. R. Ct. Ann. Rule 9 (1999).

79. Wis. Stat. Sec. 972.15 (1999).

80. Ga: Benefield v. State, 140 Ga. App. 727,

232 S.E.2d 89 (1976); Iowa: State v. Randall,

258 N.W.2d 359 (Iowa 1977); Md: Haynes v.

State, 19 Md. App. 428, 311 A.2d 822 (1973);

Minn: County of Sherburne v. Schoen, 306

Minn. 171, 236 N.W.2d 592 (1975); Neb: State

v. Richter, 191 Neb. 34, 214 N.W.2d 16 (1973);

Okla: Lucker v. State, 552 P.2d 711 (Okla. Crim.

App. 1976); S.D.: State v. Robinson, 87 S.D.

375, 209 N.W.2d 374 (1973); State v. Hanson,

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

Code Crim. Proc. art. 42.12 (2000); Vermont:

U.S. Dist. Ct. (Vt.) L. Cr. R. 57.1 (1999).

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

(1995).

82. Ariz. R. Ct. Ann. Rule 26.6 (2000).

83. La. C. Cr. P. art. 877 (2000). 

84. Mont. Code Ann. Sec. 46-18-113 (1999).

85. HRS Sec. 706-601 (1999).

86. Kan. Stat. Ann. Sec. 21-4605 (1999).

87. N.J. Stat. Sec. 2C:44-6 (2000).

88. 711 F.2d 1164; 722 F.2d 1073 (1983).

89. 711 F.2d 1164, 1173.

90. Id. at 1175.

91. Id. 

92. United States v. Schlette, 842 F.2d 1574

(1988).

93. Id. at 1584.

94. Id. at 1582.

95. 879 F.2d 224 (1989).

96. Id. at 229.

97. Id. at 240.

98. Id.

99. 43 F.3d 135 (1995).

100. See Demoran v. Witt, 777 F.2d 1402 (9th

Cir. 1985); Turner v. Barry, 856 F.2d 1539 (D.C.

Cir. 1988).

101. Sheldon v. McCarthy, 699 F. Supp. 412

(U.S.D.N.Y. 1988).

102. Bieros v. Nicola, 839 F. Supp. 322 (U.S.D.

Pa. 1993).

103. Clark v. Eskridge, 602 N.E.2d 1288

(1991).

104. Townsend v. Burke, 334 U.S. 736 (1948).

105. United States v. Lasky, 592 F. 2d 560 (9th

Cir. 1979); Moore v. United States, 571 F.2d

179 (3d Cir. 1978).
67

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REPORTS

106. Pub. L. No. 94233, 90 Stat. 219, codified at

18 U.S.C. 4201-4218 (1976).

107. See Mosley v. Ashby, 459 F.2d 477 (3d Cir.

1972); Madden v. New Jersey State Parole Bd.,

438 F.2d 1189 (3d Cir. 1971); Cruz v. Skelton,

543 F.2d 86 (5th Cir. 1976); Brown v.

Lundgren, 528 F.2d 1050 (5th Cir.), cert. denied,

429 U.S. 917 (1976); Scarpa v. United States

Bd. of Parole, 477 F.2d 278 (5th Cir.) (en banc),

vacated as moot, 414 U.S. 809 (1973); Scott v.

Kentucky Parole Bd., No. 741899 (6th Cir. Jan.

15, 1975), remanded for consideration of mootness,

429 U.S. 60 (1976), reaffirmed sub nom. Bell v.

Kentucky Parole Bd., 556 F.2d 805 (6th Cir.

1977), cert. denied, 434 U.S. 960 (1978);

Dorado v. Kerr, 454 F.2d 892 (9th Cir. 1972);

Schawartzberg v. United States Bd. of Parole,

399 F.2d 297 (10th Cir. 1968).

108. See United States ex rel. Johnson v.

Chairman, New York State Bd. of Parole, 500

F.2d 925 (2nd Cir. 1974), vacated as moot, 419

U.S. 1015 (1975); Coralluzzo v. New York State

Parole Bd., 566 F.2d 375 (2nd Cir. 1977), cert.

dismissed as improvidently granted, 435 U.S. 912

(1978); Bradford v. Weinstein, 519 F.2d 728

(4th Cir. 1974), vacated as moot, 423 U.S. 147

(1975); Franklin v. Shields, 569 F.2d 784 (4th

Cir. 1977) (en banc), cert. denied, 435 U.S. 1003

(1978); United States ex rel. Richerson v. Wolff,

525 F.2d 797 (7th Cir. 1975); Childs v. United

States Bd. of Parole, 511 F.2d 1270 (D.C. Cir.

1974).

109. Greenholtz v. Inmates of the Nebraska Penal

and Correctional Complex, 442 U.S. 1 (1979).

110. Id. at 11.

111. Neb. Rev. Stat. 831, 114 (1) (1971).

112. See Cripe, Clair A. (1997). Legal Aspects

of Corrections Management. Gaithersburg,

Maryland: Aspen Publishers.

113. 115 S. Ct. 2293 (1995).

114. Morrissey v. Brewer, 408 U.S. 471 (1972).

115. Note, Prisoners Access to Parole Files: A Due

Process Analysis, 47 Fordham L.R. 260 (1978).

116. 556 F.2d 1143 (2nd Cir. 1977), cert. 

dismissed, 434 U.S. 944 (1978).

117. 469 F.2d 8 (4th Cir.), aff’d in part and rev’d

in part en banc, 569 F.2d 784 at 800 (1977),

cert. denied, 435 U.S. 13 (1978).

118. Walker v. Prisoner Review Board, 594 F.

Supp. 556 (U.S.D. Ill., 1984). See also, Braxton

v. Josey, 567 F. Supp. 1479 (D. Md. 1983),

contra, and Stanley v. Dale, 298 S.E.2d 225

(W. Va. 1982) (prisoner entitled to see file unless

security considerations dictate otherwise).

119. See Ybarra v. Dermitt, 104 Idaho 150, 657,

P.2d 14 (1983) (no right to confront authors of

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

SUMMARY

NOTES

CHAPTER 6

71

CHAPTER

6

LIABILITY OF

PAROLE

BOARD

MEMBERS FOR

RELEASE OR

NONRELEASE

INTRODUCTION

The issues of parole board liability for

release or nonrelease, liability of parole

board members to the general public for

crimes committed by parolees, and liability

for alleged violations of inmates’ rights are

addressed in this chapter. These topics are of

significant interest to prospective parolees

and the public and are also fertile areas of

litigation. 

The United States Supreme Court case

Greenholtz v. Nebraska Penal Inmates,

1 decided

in 1979, held that prison inmates are not

entitled to due process rights under the

Constitution in parole release decisions. The

case stemmed from a class action against the

Nebraska Parole Board alleging denial of

procedural due process. Nebraska’s discretionary parole procedures prescribed a twostage parole hearing, including allowing

inmates to present evidence, call witnesses,

be represented by counsel, and be notified,

in writing, of the reasons if parole was

denied. Given these administrative procedures, the Court held that while the mere

possibility of discretionary parole release

does not carry with it due process rights

under the Constitution, the state statute was

worded in such a way that it created a liberty

interest entitling inmates to due process. The

Court in this case laid down three important

constitutional principles on the granting or

nongranting of parole:

■ There is no constitutional or inherent

right of a convicted person to be conditionally released before the expiration of a

valid sentence. Simply stated, parole is a

privilege and not a right.

■ A state may establish a parole system, but

it has no duty to do so.

■ There is a crucial distinction between

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.

I. THE PAROLE

RELEASE HEARING:

INMATE GENERALLY

HAS NO DUE

PROCESS RIGHTS

A. No Constitutional Right to

Counsel

The general rule on representation is that

there is no right to either retained or

appointed counsel as a matter of constitutional law.2 Any jurisdiction, state or federal,

may allow representation by law or agency

policy, but most do not. Several states are

experimenting with retained counsel at the

hearing, and most allow access to an attorney in preparation for a hearing.3

1. Federal 

The right of the federal prisoner to retain

counsel to accompany him or her to the

parole release hearing has not been at issue

since the enactment of the Parole Commission

and Reorganization Act of 1976.4 The act

provides that a prisoner, prior to parole determination, may consult with a representative

who qualifies under the rules and regulations

of the Commission. Attorneys are not to be

excluded as a class. Caution should be exercised, however, because the Sentencing

Reform Act of 1984 abolished parole eligibility for federal offenders who commit

offenses on or after November 1, 1987, and

abolished the U.S. Parole Commission.5

However, the Judicial Improvements and

Parole Commission Phaseout Acts extended

the Parole Commission’s jurisdiction until

November 1, 2002.6 After this date, it is

expected that new regulations will be published, but that the regulations will provide

similar rights of consultation.
72CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

2. State 

The question of whether a state inmate

should be afforded the right to counsel

remains basically a state question. The role

of counsel in most states is restricted to

advising the prisoner before the hearing, or

making oral or written arguments to the

parole board after the hearing.

7 In addition,

courts that have considered the issue on constitutional grounds have decided there is no

constitutional right to assistance of counsel

at the release hearing.

8

Federal Circuit Courts of Appeal have held

that the Constitution does not require the

appointment of counsel at a parole release

hearing,

9 does not permit counsel to attend

parole hearings,10 and does not require the

assistance of counsel at a parole application

proceeding.11

B. Release Criteria

1. Federal 

Federal statute sets out the criteria that the

Parole Commission uses in determining

whether to release the prospective parolee.12

Publication of such criteria provides a guide

to the Commission and some assurance that

decisions will not be arbitrary.13 Such criteria

and the implementing Parole Commission

guidelines are a step toward confining the

discretion of the paroling authority without

stripping it of its discretionary authority.14

Liability in this area focuses on the discretionary powers of the parole board. The

parole board cannot be held liable under the

Federal Tort Claims Act (FTCA) for a decision made in exercise of its discretionary

function. However, FTCA liability may exist

when required steps of the decisionmaking

process are ignored.15

2. State 

The question as to whether a state prisoner

is entitled to know what criteria the paroling

authority uses in making its determination

is basically an issue of state law. When the

issue was brought to the courts in the past,

the prospective parolee was usually in a state

that did not require publication of criteria.

When the inmate brought the issue before a

court, the allegations were based on a due

process claim.

Inmates are usually not successful in claiming that due process mandates the criteria

used by an authority in making its release

decision be published. For example, the

Federal Court of Appeals for the Fifth

Circuit held the parole board’s standards for

deciding parole applications are of judicial

concern only where arbitrary action results

in the denial of a constitutionally protected

liberty interest, and the expectation of

release on parole is not such an interest.16

The Federal Court of Appeals for the Second

Circuit held “unless and until” the statement

of specific facts and reasons for denial of

parole given to prisoners prove inadequate

to protect inmates in the parole decisionmaking process, the court would not compel

the parole board to reveal its release criteria.17

Although Federal Courts of Appeals have

determined that a federal constitutional

right does not apply to the publishing of

state parole release criteria, this does not prevent a court from finding otherwise under a

state constitution. The basic principle is that

a state is not restricted in extending rights to

its citizens by the rights granted by the federal Constitution. Some states have been

providing what the federal courts have

declined to require. 

Payton v. United States18 suggests several bases

for liability. In this case, probation officers

were found to have a duty to furnish the

parole board information concerning prisoners as well as, wherever not incompatible

with public interest, their views and recommendations with respect to parole disposition. Parole boards may have a duty to

acquire and read pertinent reports that

would inform board members of inmates’

violent propensities.
73

CHAPTER

6

LIABILITY OF

PAROLE

BOARD

MEMBERS FOR

RELEASE OR

NONRELEASE

United States v. Irving19 found parole board

members absolutely immune from liability

claims under Section 1983 of 42 U.S. Code.

However, the court noted that the plaintiff’s

claims of systematic racial discrimination

against black inmates with regard to parole

releases were sufficient for declaratory relief.

Impermissible discrimination on the part of

the board is actionable, therefore, despite

immunity principles. Liability for abuse of

discretion may require a showing of bad

faith or action outside the scope of board

authority.20 For example, board failure

to consider, in the context of the Youth

Corrections Act, the plaintiff’s response to

rehabilitation might reasonably constitute

abuse of discretion.21

Where due process is required by the finding

of a liberty interest in parole, one court ruled

that due process required a statement of reasons for parole denial sufficient to enable a

reviewing body to determine whether the

parole had been denied for an impermissible

reason.22 A West Virginia court specified that

a person denied parole was entitled to more

than “mechanistic” written reasons.23 But use

of a checklist to inform an inmate of reasons

for parole denial was deemed not improper

in another case.24

C. Explanation for Denial of

Parole

Since there is no general federal constitutional right to due process in parole release,

there is no general constitutional right either

to be given the reason for parole denial. This

once was an area of considerable litigation;

hence, it deserves discussion. As a practical

matter, this is hardly an issue because surveys show that 47 jurisdictions routinely

gave written explanations.25 Prisoner complaints in some cases were based on a due

process theory and on an administrative

procedures act. 

Administrative law is the body of law that

governs the powers, procedures, and judicial

reviewability of administrative agencies and

their actions. An administrative procedures

act is a codification by a legislature of a set

of generic rules in these areas.

1. Federal 

Section 555(e) of the federal Administrative

Procedures Act (APA) requires that notice be

given upon denial of an application before

an administrative agency. In a 1974 case,

the Seventh Circuit found the APA applicable to the United States Board of Parole and

required the Board to give the appellant a

statement of reasons for refusing his application for parole.26 The traditional view had

been that the APA was not applicable to the

Board of Parole.

The relevance of the APA at the federal level

has become of interest only since the creation of the Parole Commission. Sections

4206 and 4208(g) of Title 18, U.S. Code,

provide that if parole is denied, a personal

conference to explain the reasons for denial

shall be held at the conclusion of the proceedings, if feasible. Furthermore, Section

4206(b) provides that if parole is denied,

notice of that determination shall state with

particularity the reasons for such denial

within 21 days of the parole hearing.

Johnson v. Rhode Island Parole Board Members27

held that parole board members were entitled to absolute immunity from liability for

damages in a 42 U.S. Code Section 1983

action in thrice denying an inmate’s parole

application. The case stemmed from a Rhode

Island inmate who brought a 42 U.S. Code

Section 1983 action against the Rhode Island

Parole Board seeking monetary damages for

an alleged violation of his liberty interests

and due process rights.

2. State 

Where the interpretation of state statutes is

in issue, federal rulings on related federal

statutes have some influence but no direct

precedential value. Moreover, unlike the federal Administrative Procedures Act, some

state laws have a specific exception for parole
74CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

decisions. Not all states have such laws. It is

best to check with local authorities for holdings pertinent to that jurisdiction.

Whether a statement of reasons for denial is

required is not a totally independent issue but,

rather, is dependent on one of three factors: ■ State court interpretation of, or legislative

inclusion or exclusion within, a state

administrative procedure act;

■ State court interpretation of the state’s

constitution concerning due process, or;

■ The policy of an administrative agency.

In states without a state Administrative

Procedures Act, the presumption is that there

is no right to an explanation of a parole

decision. However, as mentioned above, the

majority of states provided oral or written

explanations of the parole decision anyway.

■■■

II. LIABILITY OF

PAROLE BOARD

MEMBERS FOR

CRIMES COMMITTED

BY RELEASED

OFFENDERS Parole board liability for the release of

an offender on parole who subsequently

commits an offense is an important legal

issue that has drawn the attention of the

courts and will continue to be litigated in

the future. The question centers on possible

liability of parole board members to victims

or their families for crimes, particularly of a

violent and predatory nature, committed by

inmates released on parole.28 The public reasons that since public protection is one purpose of parole, the parole board should be

held liable if a parolee injures a member of

the public because, if the parolee had not

been released by the board, the injury would

not have occurred. 

Generally, however, parole board members

are entitled to absolute immunity when

engaged in actions within the proper scope

of official duties. The courts have held that

since parole board officials perform functions comparable to those of a judge, in

deciding to grant, deny, or revoke parole,

they are entitled to absolute immunity. 

Case law in this area suggests most courts

will honor immunity principles for parole

board members but find some limited liability or an argument for potential limited

liability. Judicial analyses focus on discretion.

Where a parole board is seen by a court to

omit a required step in its discretionary

decisionmaking process or to abuse discretion, board members may jeopardize claims

to immunity.

A. The General Rule Is No

Liability

In Santangelo v. State,

29 an action for negligent release was brought in the New York

Court of Claims against the state by a woman

who was raped by a released inmate. The

court conceded that there is a valid public

interest in protecting society from the depredations of known dangerous individuals, but

added that there also exists a recognized public interest in rehabilitating and reforming

offenders. The court said that the Temporary

Release Committee had the duty to exercise

reasonable care to avoid the release of a prisoner where to do so would not be found just

because subsequent events proved a release

decision wrong. In the Santangelo case, the

record reflected that the release decision did

not entail a very thorough examination into

the releasee’s background or character. The

inmate was never interviewed personally

by the committee and appeared before the

committee only to have the conditions of

release explained to him. His parole officer

was not consulted, even though it was the

officer’s recommendation that the inmate
75

CHAPTER

6

LIABILITY OF

PAROLE

BOARD

MEMBERS FOR

RELEASE OR

NONRELEASE

serve additional time. Moreover, no psychiatric or psychological reports were considered.

Despite these indications of lack of due care,

the court dismissed the plaintiff’s claim

because there was not sufficient evidence

before it to determine if the committee’s

decision would have been any different had

a more thorough examination been undertaken. (Before negligence liability is assessed,

it is usually required that the negligence be

proven to be the cause in fact of the injury.

Here, it could not be said that “but for”

the failure to take these diagnostic steps,

the harm could have been prevented.) Thus,

the plaintiff failed to establish that the committee knew or should have known of the

dangers posed by its decision to release.

No liability was assessed.

Similarly, in Welch v. State,

30 action was

brought against the State of New York

claiming damages caused by the state’s negligence in paroling Freddie Lee Davis, who

had a history of violent antisocial and

deviant behavior and who had been incarcerated for viciously attacking and raping

young women. It was further alleged that

the state was negligent in supervising Davis

as a parolee, thus causing the plaintiff permanent injuries when the parolee struck her

with a piece of lumber and threw her in a

river. The trial court dismissed the case and

the plaintiff appealed. The state appellate

court affirmed the dismissal, stating that

the nature and extent of the state’s duty

of supervision, as well as the question of

whether the released prisoner’s actions were

foreseeable, can be put at issue only if the

claim sets forth adequate factual allegations

supportive of the charge of negligence on

the part of the state. In this case, the terms

and conditions of the parolee’s release were

not set forth, nor were there any factual allegations as to the manner in which the state

was negligent. The negligence of the state

was not presumed from the fact of the

assault. No liability was imposed.

Note that in these two cases, the courts did

not say that the officers could never be held

liable for what they did. On the contrary,

the liability claim in Santangelo was the

result of failure by the plaintiff to prove that

without negligence the resulting decision by

the agency would have been different, and,

in the Welch case, it was the failure of the

plaintiff to bring forth evidence sufficient to

prove negligence on the part of the officers.

In Thompson v. County of Alameda,

31 decided

by the California Supreme Court in 1980,

a 5-year-old boy was sexually assaulted and

killed by a delinquent within 24 hours after

the delinquent’s release by the county probation department. The parents filed action

against Alameda County for reckless, wanton, and grossly negligent conduct in the

following: (1) releasing the juvenile delinquent to the community; (2) failing to give

notice of the delinquent’s propensities to the

delinquent’s mother, the police, and the parents of the young children in the neighborhood, and notice of the fact and place of

release to the police and such parents; (3)

failing to exercise reasonable care through

its agent, the delinquent’s mother, after his

release; and (4) failing to use reasonable care

in the selection of its agent to undertake the

delinquent’s custody. Basing its decision primarily on the California law that provides

immunity from liability for discretionary

acts by government employees and immunity in determining parole or parole conditions, the trial court dismissed the case and

the parents appealed. The appellate court

found no liability because (1) the plaintiffs

alleged no special or continuing relationship

between themselves and the defendant county and (2) the decedent had not been a foreseeable or readily identifiable target of the

juvenile offender’s threats.
76CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

In summary, the court in Thompson ruled:32

Whenever a potentially dangerous

offender is released and thereafter commits a crime, the possibility of the

commission of that crime is statistically foreseeable. Yet the Legislature has

concluded that the benefits to society

from rehabilitative release programs

mandate their continuance. Within

this context and for policy reasons the

duty to warn depends upon and arises

from the existence of a prior threat to

a specific identifiable victim or group

of victims . . . [citations omitted]. In

those instances in which the released

offender poses a predictable threat of

harm to a named or readily identifiable

victim or group of victims who can

he effectively warned of the danger, a

releasing agent may well be liable for

failure to warn such persons.

In Larson v. Darnell,

33 a juvenile parolee

raped and murdered a 12-year-old girl. The

court found immunity for the board even if

its decisions over whom to parole, when to

parole, and where to place the parolee were

performed negligently, willfully, and wantonly. Although the court noted that evidence

of corrupt or malicious motives or abuse of

power might have brought about a different

result, the decision reflects a strong public

policy interest in protecting discretionary

decisions. Larson draws the boundaries of

responsibility between board supervisory

decisions and officers administering board

supervisory decisions.

By contrast, in the following cases the

potential liability recognized in the above

cases was proved; hence, liability ensued.

In Grimm v. Arizona Board of Pardons and

Paroles

,

34 the parole board and its members

were sued for negligent release of Mitchell

Blazak, a diagnosed dangerous social psychopath who had served one-third of a sentence for armed robbery and assault with

intent to kill. The parole board invoked the

absolute immunity defense, but this was

rejected by the Arizona Supreme Court. The

court held that parole board members enjoy

only qualified immunity in the exercise of

their discretionary functions. Relying on

state law, the court said that the Board had

narrowed its duty in the case from one owed

to the general public (for which there is no

liability) to one owed to individuals (for

which there may be liability) by assuming

parole supervision over, or taking charge

of, a person having dangerous tendencies.

Liability was also based on the finding that

the release decision was reckless or grossly

or clearly negligent.

In jurisdictions like Arizona that reject the

absolute immunity rule and therefore allow

liability, the central issue becomes when are

parole board members reckless or grossly

or clearly negligent in granting a parole

release?35 There is no definitive answer; however, courts tend to use the standards of duty

and foreseeability—meaning whether there

was a legal duty of care imposed on the

parole board members and whether, given

the facts in the case, the danger could have

been foreseen. One writer points out that a

decision to release would be grossly negligent if the entire record of the prisoner indicated violent tendencies (as in Grimm), and

there is no reasonable basis to believe that

the prisoner has changed.36

Payton v. United States,

37 decided by the

Federal Court of Appeals for the Fifth

Circuit held, in 1981, that the United States

Parole Commission could be sued for negligence because of the release of a federal

prisoner who then kidnapped, raped, and

murdered three women. The suit, brought

under the Federal Tort Claims Act, charged

that the Commission was negligent when

it released a federal prisoner who had been

repeatedly diagnosed as a dangerous, homicidal psychotic while in prison, and who

had been sentenced to 20 years in prison

for severely beating a woman. Despite these

warning signals, the prisoner’s sentence was
77

CHAPTER

6

LIABILITY OF

PAROLE

BOARD

MEMBERS FOR

RELEASE OR

NONRELEASE

reduced to 10 years, and he was later granted parole in the custody of a priest. He later

killed three women. The court said that the

release of a prisoner in total disregard of his

known propensities for repetitive brutal

behavior was not an exercise of discretion,

but, instead, was an act completely outside

clear statutory limitations.

The court distinguished between the Commission’s role as the promulgator of paroling

guidelines and its responsibilities in applying

the guidelines to individual cases. The court

of appeals said that the government would

have been immune if the damage suit had

attacked the government guidelines themselves, because the dispute would then have

concerned the selection of the appropriate

release policy, which by law has been committed to agency discretion. In this case, however, the suit charged that the guidelines for

parole were not properly applied to this particular parolee. This implies that the government enjoys immunity for drafting parole

guidelines, but not for their negligent application. The court concluded by saying:38

As government grows and the potential

for harm by its negligence increases,

the need to compensate individuals

bearing the full burden of that negligence also increases. . . . Suits under

the Federal Tort Claims Act provide a

fair and efficient means to distribute

the losses as well as the benefits of a

parole system.

However, on subsequent rehearing by the

Fifth Circuit, the decision to release without

supervision was held to be discretionary and,

therefore, not actionable under the FTCA.

The court noted that had plaintiffs alleged

that the Commission ignored a required step

of the decisionmaking process, such a claim

would be actionable. Alternatively, the court

suggested that a claim would be actionable

where the Board could be shown to have

breached a duty sufficiently separable from

the decisionmaking function to be nondiscretionary and, therefore, outside the judicial immunity exception to the FTCA. The

court, speculating as to the course of arguments not made, also noted that the Board

could have provided for continued supervision of the parolee and that failure to do so

may have been an abuse of discretion.

The Federal Court of Appeals for the Sixth

Circuit held in Janan v. Trammell,

39 that

members of the Tennessee State Parole

Board enjoyed absolute immunity from a

42 U.S. Code Section 1983 and 1985 suit

alleging gross negligence in the release of an

inmate on parole. The parolee, previously

convicted of armed robbery and grand larceny, had been on his second term of parole

for less than 2 months when he accompanied a prison escapee to Florida and committed murder. The family of the murder

victim filed a Section 1983 action claiming

that the parole board’s action deprived the

victim of his life without due process of law.

The court held, however, that the family of

the victim did not claim that the parole

board, or the defendants, had any specific

responsibility to the parolee, nor did they

claim that the defendants should have

known that the parolee’s release or subsequent possible parole violations would

endanger the victim. For these reasons, the

court found the defendant’s actions were

causally remote from the murder.

The Federal Court of Appeals for the Eighth

Circuit held that parole officials enjoyed

immunity from 42 U.S. Code Section 1983

suits involving a parolee’s crime. In Nelson v.

Balazic,

40 a Missouri parolee kidnapped and

raped three women after learning that he

was going to be sent back to prison for violating his parole. The women were employees of a drug and alcohol treatment program

that the parolee was referred to once paroled.

The defendants were two members of the

Missouri Board of Probation and Parole and

the actual parole officer of the parolee. The

court held the two parole board members to

be absolutely immune from suit in performing the quasi-judicial function of deciding to

grant, deny, or revoke parole. The parole
78CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

officer was found to have only qualified

immunity because her duties were not “intimately associated with the judicial process.”

Although the probation officer was granted

only qualified immunity, the court held that

her conduct did not violate clearly established statutory or constitutional rights and

she was thus immune from the suit. 

To summarize, decided cases strongly indicate that, although suits by victims of crime

challenging release decisions do not usually

succeed, liability may in fact be found in

cases of negligent release by board members,

supervisors, or governmental agents, but such

negligence must be gross or reckless. Mere

negligence is not enough. Gross or reckless

negligence, however, cannot be defined with

precision and must be decided on a case-bycase basis. The preceding cases merely suggest general boundaries.

B. Legislative Remedy If There Is

Liability Exposure

A case decided by the United States Supreme

Court in 1980 invites special attention because

it is an indication of what might and can be

done legislatively to enable parole board members to avoid state tort liability based on negligent release. In Martinez v. California,

41

a

15-year-old girl was murdered by a parolee

5 months after he was released from prison

despite his history as a sex offender. The parents of the deceased girl brought an action in

a California court under state law and Section

1983 of 42 U.S. Code (such claims may also

be filed in state courts at the option of the

plaintiff), claiming that state officials, by their

action in releasing the parolee, subjected the

murder victim to a deprivation of her life

without due process of law and were therefore liable in damages for the harm caused

by the parolee. The trial court dismissed the

complaint. The case eventually reached the

United States Supreme Court. The Supreme

Court held the following: (1) the California

immunity statute is not unconstitutional

when applied to defeat a tort claim arising

under state law; and (2) the parole board

members were not held liable under federal

law because of the following: ■ The 14th amendment protects a person

from deprivation by the state of life without due process of law, and, although the

decision to release the parolee from prison

was state action, the parolee’s action 5

months later cannot be considered as

state action.

■ Regardless of whether the parole board

either had a duty to avoid harm to the

parolee’s victim or proximately caused her

death, parole officials did not “deprive”

the victim of life within the meaning of

the 14th amendment.

■ Under the particular circumstances where

the parolee was in no sense an agent of the

parole board and the board was not aware

that a particular person, as distinguished

from the public at large, faced any special

danger, that person’s death was too remote

a consequence of parole board’s action to

hold the officers thereof responsible under

Section 1983 of 42 U.S. Code.42

Note that Martinez involved, among other

issues, the constitutionality of a state statute

passed by California specifically granting

absolute immunity to a public entity or a

public employee from liability under state

tort law for any injury resulting from parole

release determinations. What the Martinez

case decided was simply that a state immunity statute is constitutional when applied

to defeat a tort claim against state officials

arising under state law. The court said

that whether one agrees or disagrees with

California’s decision to provide absolute

immunity for these cases, one cannot deny

that the law rationally furthers a policy that

reasonable lawmakers may favor. The case

did not resolve the issue of whether a parole

board member, when deciding whether to

release an inmate, is entitled to absolute

immunity as a matter of constitutional law.

That issue is still unresolved. Other states
79

CHAPTER

6

LIABILITY OF

PAROLE

BOARD

MEMBERS FOR

RELEASE OR

NONRELEASE

might, however, pass a similar statute if they

want to fully protect their officers from possible liability for official acts under state law. 

Plaintiffs in Martinez contended that liability

ensued under the 14th amendment of the

Constitution. The United States Supreme

Court replied, however, that the amendment

protects persons only from deprivations by

the state of life without due process of law.

State involvement must be present for liability to ensue. Although the decision to release

the parolee from prison in this case was originally considered an act of the state, what

the parolee did 5 months after release could

not be fairly characterized as state action.

The death in this case was too remote a consequence of the parole officials’ action to

hold them responsible under the federal civil

rights law. This implies that, in federal litigation, a negligent initial decision to release is

weakened by the passage of time.

■■■

III. LIABILITY OF

PAROLE BOARD

TO INMATES FOR

VIOLATION OF

RIGHTS

A. Substantive Rights

Two cases involving Section 1983 of 42 U.S.

Code claims against parole boards alleged to

have deprived plaintiffs of fundamental civil

liberties. In United States v. Irving,

43 a Federal

Court of Appeals for the Seventh Circuit decision, the plaintiff claimed systematic racial

discrimination against black inmates with

respect to parole releases. In Jones v. Eagleville

Hospital and Rehabilitation Center,

44 a 1984

Pennsylvania District Court case, the plaintiff brought suit against the parole board

after a parole revocation occasioned by the

plaintiff’s refusal to remove a skullcap with

religious significance to the plaintiff while

participating in a drug treatment program.

The Irving court found absolute immunity

for parole board members. However, the

court noted the plaintiff’s claim for declaratory relief could still be addressed because

evidence tended to demonstrate impermissible discrimination on the part of the parole

board. The Jones court found the parole

board was not “a person” within the meaning of Section 1983 of 42 U.S. Code. With

regard to the hospital that terminated treatment on the plaintiff’s refusal to remove his

skullcap, the court found that the parolee

could possibly make out a claim against it

were he able to establish that the action

taken was “state action.”

B. Procedural Rights

Parole boards are also subjected to suit by

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

relied on to deny parole was not required

by due process. Parole decisions are based

on broad discretion statutorily granted the

parole authority. Furthermore, the Partee

court held parole boards are absolutely

immune from 42 U.S. Code Section 1983

suits for actions taken when processing

parole applications.

Adams v. Keller46 was a 42 U.S. Code Section

1983 action against the parole commissioner

for misapplication of youth parole guidelines. The court examined the factual basis

for the plaintiff’s claim of abuse of discretion by the parole commission in setting the

plaintiff’s parole date. The court found no

evidence of bad faith or action outside the

scope of authority by the commissioner.

However, the plaintiff’s claim of right to a

new parole hearing based on the parole commission’s failure to consider the plaintiff’s

response to rehabilitation when setting a

parole date was affirmed. The court found
80CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

that while Congress intended to apply 

concepts of punishment, retribution, and

deterrence in passing the Youth Corrections

Act, there was no indication that Congress

intended to totally abandon any consideration of potential for rehabilitation.

In Corby v. Warden

,

47 the plaintiff charged

that the state parole hearing officer violated

his constitutional rights by intercepting

mail explaining mitigating circumstances

for the alleged violation of parole. The court

found the claim was based on the hearing

officer’s acts as a judicial officer and that

the officer was, therefore, entitled to quasijudicial immunity.

In three other 42 U.S. Code Section 1983

suits against parole boards,48 courts easily

found immunity for decisions relating to

granting, denying, or revoking parole.

Walker v. Prisoner Review Board 49 held that,

although failure of the parole board to allow

the inmate access to his file was a violation of

due process rights provided under statutory

law, the court nevertheless affirmed absolute

immunity for these official actions. The

court held the board’s consideration of various newspaper articles would not be a violation of due process unless the inmate had

not been given an opportunity to refute the

information. Similarly, the court held the

board is entitled to consider a wide array of

information, and such information need not

bear any relation to the crime with which

the inmate plaintiff is charged. Finally, the

court noted the Seventh Circuit’s holding

that all tasks of the Illinois Prisoner Review

Board were adjudicatory in nature, meaning

that no distinction between ministerial and

adjudicatory functions was recognized. Therefore, Illinois parole officials enjoy absolute

immunity for virtually all official actions.

Each of the above categories of parole board

liability cases exhibits a similar pattern of

analysis and similar results. Parole boards

may find careful analysis of the statutes

under which they operate to be a useful

guide to procedural requirements. 

SUMMARY This chapter discusses issues related to

the liability of parole boards for release

or nonrelease. It addresses the following concerns: the rights, if any, to which inmates are

entitled in parole release hearings, the civil

liability of parole boards for crimes committed by inmates who are released and who

commit crimes while on parole, and the liability of parole boards to inmates for violation of rights related to parole release.

Case law holds that inmates hardly have

constitutional rights in parole release hearings. They do not have any constitutional

right to counsel, although that may be given

by state law or agency policy. They have no

constitutional right to be informed of the

release criteria, although that may also be

given by state law or agency policy. There is

no constitutional right to be given an explanation for parole denial, although most

jurisdictions in fact routinely give inmates

written explanations; hence, this is realistically not much of a legal issue.

Parole board liability for the release of an

inmate on parole who subsequently commits

an offense is an important issue that has

repeatedly drawn the attention of the courts.

The public reasons that since public protection is one purpose of parole, the board

should be held liable if a parolee injures a

member of the public because if the parolee

were not released the injury would not have

occurred. Generally, however, these claims

have failed because courts hold that parole

board members are entitled to absolute

immunity when engaged in actions similar

to those performed by a judge. Some courts

have found liability, however, in cases where

gross or reckless negligence on the part of

the board is established.

In lawsuits involving alleged violations of

inmates’ constitutional rights related to

parole, courts have held that parole board

members are not liable, affording them
81

CHAPTER

6

LIABILITY OF

PAROLE

BOARD

MEMBERS FOR

RELEASE OR

NONRELEASE

immunity in the performance of official

responsibilities. Parole boards must be careful, however, to observe the procedural

guidelines prescribed by state law or by

agency policy because deviation from them

might raise issues of due process violation.

Notes

1. Greenholtz v. Nebraska Penal Inmates,

442 U.S. 1 (1979).

2. Gagnon v. Scarpelli, 411 U.S. 778; 93 S.

Ct. 1756 (1973).

3. It is doubtful whether any correctional

system could prevent prisoners from securing prehearing legal assistance. See Bounds v.

Smith, 430 U.S. 817, 828 (1977). Pub. L.

No. 94233, 90 Stat. 21q (codified at 18

U.S.C. Sec. 42014218 (1976)).

4. 18 U.S.C. Sec. 4208(d)(1) (1976).

5. United States Parole Commission.

Available on the World Wide Web at

www.usdoj.gov/uspc/mission.htm.

6. Id.

7. Comment, Due Process: The Right to Counsel

in Parole Release Hearings, 54 Iowa L.R. 497,

499 (1968).

8. Id. at 499.

9. Ganz v. Bennsinger, 480 F.2d 88 (7th Cir.

1973).

10. Holup v. Gates, 544 F.2d 82 (2d Cir.

1976), cert. denied, 430 U.S. 941 (1977).

11. Buchanan v. Clark, 446 F.2d 1379 (5th

Cir.), cert. denied, 404 U.S. 979 (1971).

12. 18 U.S.C.S. Sec. 4206, 9 (2000).

13. F. Merritt, Due Process in Parole

Granting: A Current Assessment, 10 John

Marshall J. 93, 111 (1976).

14. Id. at 113.

15. Payton v. United States, 679 F.2d 475

(5th Cir. 1982).

16. Johnson v. Wells, 566 F.2d 1016 (5th

Cir. 1978).

17. Haymes v. Regan, 525 F.2d 540, 544

(2d Cir. 1975).

18. Id.

19. United States v. Irving, 684 F.2d 494

(7th Cir. 1982).

20. Adams v. Keller, 713 F.2d 1195 (6th Cir.

1983).

21. Id.

22. Horton v. Irving, 553 F. Supp. 213,

(N.D. Ill. 1982). See also, U.S. ex. rel. Scott v.

Illinois Parole & Pardon Board, 669 F.2d

1185 (7th Cir. 1982).

23. Stanley v. Dale, 298 S.E.2d. 225 (W.

Va., 1982).

24. Partee v. Lane, 528 F. Supp. 1254

(U.S.D. Ill. 1982).

25. V. O’Leary and K. Hanrahan, Parole

Systems in the United States, 44 (3d ed. 1976).

26. King v. United States, 492 F.2d 1337

(7th Cir. 1974). See also, Fronczals v.

Warden, El Reno Reformatory, 553 F.2d

1219 (10th Cir. 1977).

27. Johnson v. State, 815 F.2d 5 (1987).

28. See generally, Johnson v. Wells, 566 F.2d

1016 (1978); Franklin v. Shields, 569 F.2d

784 (1972); Thompson v. Burke, 566 F.2d

231 (1977).

29. 426 N.Y.S.2d 931 (1980).

30. 424 N.Y.S.2d 774 (1980).

31. 614 P.2d 728 (1980).
82

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

32. Id. at 732.

33. Larson v. Darnell, 448 N.E.2d 249 (Ill.

App. Ct. 1983).

34. Grimm v. Arizona, 115 Arizona 260,

564 P.2d 1227 (1977). Subsequently Ryan v.

State, 656 P.2d 597 (Ariz. 1982) abolished

the discretionary v. ministerial distinction in

Arizona, hence severely curtailing the immunity defense.

35. Note, Torts—Parole Board Members

Have Only Qualified Immunity for

Decision to Release Prisoner, 46 Ford. L.

Rev. 1301, 1313 (1979).

36. Id. at 1314.

37. Payton v. United States, 636 F.2d 132

(5th Cir.), rehearing granted, 649 F.2d 385

(5th Cir. 1981); 679 F.2d 475 (5th Cir.

1982).

38. Id.

39. Janan v. Trammell, 785 F.2d 557 (1986).

40. Nelson v. Balazic, 802 F.2d 1077

(1986).

41. Martinez v. California, 444 U.S. 277

(1980).

42. Id.

43. United States v. Irving, 684 F.2d 494

(7th Cir. 1982).

44. Jones v. Eagleville Hospital and

Rehabilitation Center, 588 F. Supp. 53

(U.S.D. Pa. 1984).

45. Partee v. Lane, 528 F. Supp. 1254

(U.S.D. Ill. 1982).

46. Adams v. Keller, 713 F.2d 1195 (6th Cir.

1983).

47. Corby v. Warden, 561 F. Supp. 431

(U.S.D.N.Y. 1983).

48. Walker v. Missouri Department of

Probation and Parole, 586 F. Supp. 411

(U.S.D. Mo. 1984); Ross v. United States,

574 F. Supp. 536 (U.S.D.N.Y. 1984);

Walker v. Prisoner Review Board, 594

F. Supp. 556 (U.S.D. Ill. 1984).

49. Id.
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

CHAPTER 7
IV. EXPLANATION OF CONDITIONS

V. MODIFICATIONS OF CONDITIONS

VI. EXTENSION

VII. TERMINATION

VIII. CHANGES IN STATUS OF THE OFFENDER

SUMMARY

NOTES
85

CHAPTER

7

CONDITIONS, MODIFICATIONS, AND

CHANGES IN

STATUS

INTRODUCTION

The enforcement of the conditions of

parole or probation is essential to the

proper supervision of offenders. Conditions

reflect the will of the court or parole board

and the expectation that the court or parole

board has established in order for a parolee

or probationer to successfully complete the

term of supervision. As officers of the court

(probation officers) or officers of the executive branch (parole officers), probation and

parole officers have the legal responsibility

for ensuring that the offender abides with

the conditions imposed by the court or

parole board.

In addition, the conditions of parole or probation form an essential part of any supervision or treatment plan established for the

offender. The determination of the risks

and needs of an offender, the results of any

assessments administered to the individual,

and specific recommendations made by the

officer to the court or parole board that is

considering the release of the defendant

often reappear as conditions of parole or

probation. These conditions, in turn, must

be incorporated in the supervision plan of

the offender and any treatment plan developed for the individual.

Conditions of probation or parole can basically be categorized into three classifications:

regular, special, and modified conditions. In

addition to the conditions that an offender

must follow, under certain circumstances,

an offender may be obligated to report any

changes in his status to his officer. This obligation to report a change in status may be

required as a condition of probation or parole,

as an administrative requirement of the probation or parole department, or as a statutory

mandate. This chapter will examine the various types of conditions and change of status

requirements that may be imposed on or

required of an offender, the responsibility

of an officer to ensure that conditions are

enforced or a change in status is reported,

and the potential liability issues that may

arise in the inadequate or improper enforcement of conditions or reporting requirements.

A regular condition of probation or parole

is generally one that is statutorily authorized

or approved and is imposed on almost every

offender granted probation or parole. In

addition, a regular condition may be one

that, even though not specifically statutorily

mentioned or enumerated, is imposed by a

particular court or parole board on almost

every offender requesting a grant of probation or parole who appears before that sentencing or parole authority. Because of its

universal application, this type of condition

is referred to as a “regular” condition. The

imposition of a regular condition of probation or parole is less likely to be successfully

challenged on appeal than a special condition. A regular condition is almost invariably

presumed to be reasonable.

A special condition is one that is not

imposed as a matter of course on all probationers or parolees. It is usually designed

to promote the rehabilitation of a specific

offender by requiring him or her to avoid an

environment deemed not to be conducive to

his well-being or to participate in a particular program or service in order to address

a specific problem or need of his or hers.

In addition, a special condition may be

imposed in order to reduce the potential

of an offender committing a specific harm

to the community or a victim. So long as

a condition can reasonably be said to contribute both to rehabilitation aims and the

protection of society, the condition is likely

to be held permissible;1 however, a condition that bears no relationship to the offense

committed by the offender or to future criminal acts, does not protect the public, or

impermissibly infringes on a probationer or

parolee’s basic constitutional rights is invalid. 

Conditions are set only by the court or

parole board; therefore, the field officer

need not fear liability for their imposition.

However, he or she should be concerned
86CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

with the enforcement of conditions, as matters of both rehabilitation and practicality.

The best time to deal with such issues is

before they are imposed. A presentence or

preparole report should not include a condition that is either overly difficult to supervise or open to serious question as to its

function or legality. For example, a condition requiring church attendance would fall

into this category because of a potential conflict with the first amendment’s guarantee of

the free exercise of religion.

A condition that is phrased in such a way as

to require compliance by the offender with

“any other order” of the supervising officer

can lead to serious problems for the officer.

Such a condition may be an improper delegation of authority because it leaves the decision

to impose or enforce a certain requirement

on the offender to the probation or parole

officer and not with the court or parole board.

Thus, absent express statutory authority to

the contrary, such a condition is generally

void. Moreover, a court or parole board cannot bestow blanket authority on a probation

or parole officer to require an offender to perform an act or refrain from doing so. Not

only is such a “blank check” illegal, but it is

also not conducive to rehabilitation to put

the offender in a position that would cause

severe peer or family conflict, such as ordering him to become an informant.

General rules can be stated that should give

the field officer ample guidance. First, a formal condition set by the court or the board

is generally acceptable (note the limitations

discussed in this chapter). Second, a reasonable condition, such as meeting with the

officer at a certain time and place, is acceptable as long as it is imposed in good faith.

Third, in emergency situations, radical

orders will be acceptable provided they are

imposed in good faith, are temporary and

necessary under a true emergency, and are

not illegal. When faced with such a situation, the officer can best protect himself or

herself by obtaining from the offender a

written consent, or if that is refused, a written admission that the offender is aware of

the order and wishes to challenge it. Fourth,

substantial changes in set conditions should

not be made except under emergency conditions. Fifth, any changes of an enduring

nature must be made by the court or the

board.

2 In all events, the officer is obligated

to notify the offender of the change and, as

with conditions in general, explain the condition to the offender.

Unequal or arbitrary enforcement of conditions can be the basis for a lawsuit under

the due process and equal protection clauses

of the United States Constitution and possibly under individual state constitutions.

Unreasonable distinctions between individuals or classes of individuals will potentially expose the officer to personal liability.

Moreover, the arbitrary or capricious enforcement of conditions or the requirement that a

probationer or parolee perform an unreasonable act may also incur liability. The question of reasonableness will be decided on a

case-by-case basis. Class distinctions and

unequal or selective enforcement based on

race, creed, gender, religion, or ethnicity

are extremely difficult to justify and should

always be avoided.

Several specific areas have been the targets of

judicial examination, particularly conditions

involving reproductive rights; rights of free

speech and expression; “scarlet letters” (i.e.,

public shaming); and the requirement to

undergo periodic polygraph examinations.

After a brief statement of the current law on

conditions in general, the remainder of the

discussion about conditions in this chapter

will consider the more difficult ones: (1)

conditions that infringe upon fundamental

constitutional rights, (2) conditions that

infringe upon other rights, and (3) explanation of conditions to the offender.
87

CHAPTER

7

CONDITIONS, MODIFICATIONS, AND

CHANGES IN

STATUS

I. CONDITIONS IN

GENERAL

Probationers and parolees enjoy conditional freedom from confinement. All

jurisdictions impose some explicit conditions, or standards of conduct, that the probationer or parolee is expected to observe in

return for his or her release. Data about the

number and variety of parole conditions are

less abundant than probation condition data

because the number of authorities imposing

parole conditions is limited.3

Some of the more common conditions

imposed on probationers and parolees are:

■ Commit no offense against the state in

which the offender was convicted, another

state, or the United States of America.

■ Refrain from congregating around or

associating with disreputable persons

or persons with criminal convictions.

■ Abstain from the use or possession of

alcohol or drugs.

■ Maintain suitable employment.

■ Report to one’s probation or parole officer

on a regular basis.

■ Obtain permission to travel to another

locality in the state or to another state.

■ Observe limitations on the possession or

ownership of firearms or other weapons.

■ Pay restitution to the victim of the

offender’s crime.

Most of these above listed conditions are

statutorily authorized by the legislatures of the

States. This indicates the desire of legislators

that the courts or parole board impose certain

standard conditions on probationers and

parolees. Nevertheless, the number of legislatively enumerated conditions of probation or

parole varies widely from state to state. Some

state laws have only a minimum number of

prescribed conditions while other states’

statutes list an extensive array of conditions.

In addition, legislators may authorize the

courts or parole board to impose special

conditions on certain offenders but not all.

For example, sex offenders may be required

to participate in sex offender therapy, register as sex offenders, and refrain from entering child safety zones. Substance abusers

may be required to submit to urinalysis and

participate in substance abuse treatment.

Persons convicted for driving under the

influence may be required to refrain from

operating a motor vehicle and participate

in counseling for alcohol abuse.

Moreover, courts or the parole board may

impose a special condition on an offender

that may not be statutorily mentioned but

may address a specific risk or need of the

individual offender. Thus, a person convicted of embezzlement may be required, as a

condition or probation or parole, not to seek

employment as a bookkeeper. A person convicted of domestic assault may be required,

as a condition of probation or parole, not to

contact his or her spouse or other injured

family member. Generally, a special condition of probation or parole is invalid only if

it has all three of the following characteristics: (1) has no relationship to the crime, (2)

relates to conduct that is not in itself criminal, and (3) forbids or requires conduct that

is not reasonably related to the future criminality of the offender or does not serve the

statutory ends of probation or parole.4

Considering that more than 4.1 million

adult men and women were on probation or

parole at the end of 1998,5 the frequency of

litigation concerning the constitutionality

and legality of conditions is surprisingly

small. This is because a probationer/parolee

realizes that he or she has agreed to the conditions and is also aware of the possible consequences of challenging them. The mere act

of agreeing to the terms of probation/parole,

however, does not mean that a legal challenge is foreclosed because of waiver. Courts

have said that some constitutional rights

may not be waived, particularly if the alternative to a refusal to waive is incarceration
88

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

or nonrelease. This might amount to undue

influence or coercion.

As a general rule, the authority granting probation or parole has broad discretion to set

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

not unlimited, however, and a challenged

condition will not be upheld if it cannot be

shown to bear some reasonable relationship

to the rehabilitative purpose underlying the

probation and parole systems or has some

rational basis for deterring future criminal

acts by the offender. As the core conditions

almost always are so related, challenges to

them are seldom successful. Nevertheless,

even if a condition has a rational basis in

law, the specific language found in the condition must inform the offender in clear,

definite, and unambiguous terms of what

he or she must or must not do or said

condition will be invalid.6

As a general rule, courts will consider conditions valid as long as they are: (1) reasonably

related to the rehabilitation of the offender

or the protection of society, (2) clear, (3)

reasonable, and (4) constitutional. How

these requirements are interpreted, however,

varies considerably from one court to another, even within one state.

What follows in this chapter deals with

conditions that are less often imposed. The

material presented will illustrate that the

power to set conditions is limited and will

discuss the approach taken by the courts to

determine whether a condition is permissible. Even though these conditions are less

often imposed, the imposition of certain

conditions may show a trend indicating that

they are being increasingly utilized by the

courts. This is especially the case with regard

to persons granted probation or parole for

sex offenses and assaultive domestic offenses.

In these situations, although still rare, certain conditions are gaining popularity in the

country and are being used in more and

more jurisdictions.

■■■

II. CONDITIONS AND

CONSTITUTIONAL

RIGHTS*

I

n general, judges and parole boards exercise a lot of authority and discretion

when imposing conditions of probation or

parole. One limitation, however, is that the

condition must be constitutional. Despite

conviction, probationers and parolees have

diminished constitutional rights, meaning

they retain some but also have lost some

constitutional rights. The manner in which

courts have addressed the issue of what constitutional rights probationers and parolees

retain or lose is discussed below.

A. Free Speech and Assembly

The United States Supreme Court has recognized that parolees (and by inference

probationers) retain a conditional liberty

interest whenever they are granted probation

or parole.7Thus probationers and paroles

have certain fundamental rights that are not

abridged simply because the offenders are on

probation or parole.8 Although these fundamental rights may be restricted in certain

circumstances, appellate courts have also

limited the restrictions affecting speech and

assembly rights that may be imposed on

offenders as a condition of probation and

parole. Two leading cases in the parole conditions content recognized the principle

that certain constitutional rights cannot be

abridged because of the status of the parolee.

*The issue of search and seizure is addressed in Chapter 8, Supervision.
89

CHAPTER

7

CONDITIONS, MODIFICATIONS, AND

CHANGES IN

STATUS

In Sobell v. Reed,

9 a federal parolee asserted

that his first amendment rights had been

violated by an action of the parole board.

Sobell was restricted by the board from

going outside the limits of the Southern

District of New York “without permission

from the parole officer.” On a number of

occasions after his release, Sobell sought

and obtained permission to travel to, and to

speak at, various places. However, on other

occasions, such requests were denied. Sobell

charged that such denials invaded his first

amendment rights.

The federal district court stated that while

there are differences between prisoners and

parolees, there are none that diminish the

protections enjoyed by the latter under the

first amendment.10 After testing the restriction by the same principles, such as, “where

the (parole) authorities strongly show some

substantial and controlling interest which

requires the subordination or limitation of

these important constitutional rights, and

which justifies their infringement,”11 the court

held that the board violated Sobell’s exercise

of his rights of speech, expression, or assembly,

except when it could show that withholding

permission was necessary to safeguard against

specifically described and highly likely dangers of misconduct by the parolee.12

The second case, Hyland v. Procunier,

13

involved a California parolee. As a condition

of his parole, he was required to obtain permission from his parole officer before giving

any public speeches. The parolee’s requests

to give speeches about prison conditions at

a college campus were denied on two occasions on grounds that the speeches might

lead to student demonstrations at the prison.

The Court stated that “California (and)

federal law has imposed the due process rule

of reasonableness upon the State’s discretion

in granting or withholding privileges from

prisoners, parolees, and probationers.”14 The

Court found that California made no showing that the condition imposed on Hyland

was in any way related to the valid ends of

California’s rehabilitative system. Thus, the

Court permanently prohibited the state from:

1. Conditioning Hyland’s parole on his

seeking such advance permission; and

2. Prohibiting any California state parolee

from addressing public assemblies held

at the University of California at Santa

Cruz, when such prohibition is because

of the expected content of the speech.15

These two cases exemplify the basic notion

that even though an individual may have

been convicted of a crime, he still retains

certain fundamental rights, especially the

right of freedom of speech and freedom of

assembly. These rights can be infringed only

if the state shows a rational relationship

between the restriction on the rights of the

individual and a legitimate penalogical interest on the part of the state (or federal) authorities. For persons with a conditional liberty

interest (e.g., parolees), the state usually

must demonstrate a heightened or compelling interest, instead of a more general

interest, for curtailing the parolee’s liberty

interest. Moreover, the restriction imposed

on a fundamental constitutional right must

be narrowly tailored to serve the compelling

interest of the state in the least restrictive

means possible. These court holdings logically extend to the probation area.

In Porth v. Templar,

16 the federal Tenth Circuit

Court of Appeals stated that probation conditions must bear a relationship to the treatment of the offender and the protection of

the public. “The case stands for the proposition that absent a showing of a reasonable

relationship between a release condition and

the purpose of release, the abridgement of a

fundamental right will not be tolerated.”17

Thus, the implication in viewing this case

with the other two cases is that release conditions abridging fundamental rights can be

sustained only if they serve a legitimate and

demonstrated rehabilitative objective or

objectively serve to protect the public.18
90CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

Nevertheless, these cases do not suggest

that the mere assertion by a probationer or

parolee that some right is embraced within

the first amendment will put that right

beyond the reach of a properly tailored condition. For example, in Porth v. Templar, the

probation condition prohibited a long-term

tax protestor from circulating or distributing

materials concerning the “illegality” of the

Federal Reserve System and the income tax

and from speaking or writing on those

subjects. The court of appeals held these

restrictions were too broad, but it approved

a narrower condition prohibiting the probationer from encouraging others to violate

the tax laws.19 Another appeals court upheld

a challenge to a condition of probation that

a convicted gambler associate only with lawabiding citizens, a potential restriction on

his associational rights.20 Even political rights,

which have traditionally been accorded preferred status, may be circumscribed under

certain situations. Thus, the federal Fifth

Circuit Court of Appeals once upheld the

imposition of a condition of probation on

a former congressman convicted of election

law violations that prohibited him from

engaging in political activity.21

Several recent court decisions have examined

conditions restricting the first amendment

rights of probationers. In Commonwealth of

Massachusetts v. Power

,

22 the defendant was

convicted in a highly publicized case of

armed robbery. Having granted probation to

the defendant, the trial court then proceeded

to order her, as a condition of probation,

not to engage in any profit-generating activity connected to publishing anything about

her crime or how she was a fugitive for so

many years. The defendant appealed this

condition, arguing that this restriction was

an impermissible infringement on her first

amendment right of free speech. The appellate court rejected this contention. The

Court noted that the trial court did not

order her not to discuss the incidents surrounding her offense. Instead, the trial court

simply said that she could not profit monetarily from any discussion of her crime. The

appellate court found that this condition

was narrowly tailored to prevent her from

receiving a financial reward for her crime

without unduly infringing on her right to

talk about the matter.

In another recent decision, United States v.

Crandon

,

23 the United States Third Circuit

Court of Appeals upheld a condition of

supervised release for a defendant who

pleaded guilty to receiving child pornography that prohibited him from accessing the

Internet or other similar computer networks

without prior approval from his probation

officer. The Court found that this condition

was reasonably related to the criminal

activity of the defendant, who had used the

Internet to develop an illegal sexual relationship with a minor. Finally, the Courts have

given approval to conditions of probation

restricting antiabortion protestors convicted

of trespassing on the private property of

abortion clinics from being within a specific

distance from the clinics. The Courts have

held that this condition does not unduly

infringe upon their right of assembly or free

speech because the condition has a reasonable relationship to deterring future criminality, i.e., trespassing once again on private

property.24

B. Association 

Freedom of association is also protected by

the first amendment. While a condition

restricting association is permissible provided

there is a correlation between the offense for

which the probationer or parolee was convicted and a person or place the association

with or presence at which may lead the probationer or parolee to commit the same or

similar crime, this condition may still be

invalidated by courts for vagueness or overbreadth. The condition must be clear to the

probationer or parolee25 and also to the officer responsible for enforcing the conditions.26

An unclear or vague condition needs to be

clarified further by the officer so that the

probationer/parolee generally knows which

conduct is prohibited. For example, does a
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suspected gang member or person arrested

for but not convicted of a crime come under

the term “disreputable persons?” Does a condition forbidding a probationer/parolee from

frequenting places where alcohol is served

include restaurants or other places where

alcoholic beverages may be sold? The purpose or intent of such conditions is usually

a matter of judicial or agency determination

and therefore varies from place to place.

C. Religion 

The “free exercise” clause of the first amendment generally puts beyond the reach of government all questions of how an individual

chooses to regulate his or her religious life.

In the context of correctional institutions,

penal officials are generally afforded certain

latitude in restricting an inmate’s free exercise of religion, provided that the restriction

rationally furthers a legitimate interest of the

penal institution.27 However, in the conditions

of probation or parole context, the Courts

have examined much more closely the constitutionality of restrictions on a probationer’s

or parolee’s free exercise of religion. Thus a

probation or parole condition that purports

to require that a convicted person attend

Sunday school or church services has invariably been held to be improper.28

Recently the Courts have been examining the

propriety of ordering an offender to participate in a religious-based treatment program

as a condition of supervised release. In Warner

v. Orange County Department of Probation,

29

the Orange County, New York, Probation

Department recommended to the court that

a defendant, convicted for the third time for

driving while intoxicated, attend Alcoholics

Anonymous meetings. The trial court followed the recommendation of the probation

department and ordered the defendant to

attend said AA meetings as a condition of

probation. The defendant subsequently filed

a federal lawsuit, arguing that the probation

department violated his first amendment

rights by recommending that he attend the

AA meetings. The defendant contended that

AA meetings had a pronounced religious

component and that he, being an atheist,

should not have been required to participate

in a religious-based program.

The Second Court of Appeals agreed with

the defendant’s contention. The Court stated that a person who had no objection to a

religious-based program could be required,

as a condition of probation, to participate in

a program such as Alcoholics Anonymous.

However, if a person objected to participating in a religious-based program because of

his religious beliefs, or lack thereof, then the

probation department must afford him the

opportunity to participate in a secular alcohol treatment program. This opinion seems

to hinge on the fact that the probation department, in making its recommendation to the

trial court, did not first ask the defendant

whether he had any religious objections to

participating in a religious-based program.

If the department had and the defendant

had acquiesced, then it does not appear that

the defendant could later say the department’s recommendation violated his first

amendment rights.30

D. Privacy 

The right of privacy has been the basis of

arguments challenging conditions that

restrict relationships with a family member,31

prohibit childbearing,32 and limit sexual

intercourse.33 A condition is not invalidated

merely because it invades the fundamental

right to privacy. However the state generally

must demonstrate a compelling, as opposed

to rational, interest for infringing on probationer/parolee’s right to privacy. The degree

of demonstrating this compelling state interest varies from state to state. For example,

a condition that prohibits a probationer or

parolee from residing with his or her spouse

or other family members would doubtless

be unconstitutional if imposed for driving

while intoxicated, but might be justifiable if

the crime were domestic abuse or an injury

to a child.
92CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

E. Procreation 

The litigation concerning abortion and contraception tells us that the Constitution protects—as an aspect of a judicially understood

constitutional right of privacy—the procreative

function from government regulation unless

extremely well justified. However in the area

of probation and parole law, research has

revealed no appellate case that has approved

the restriction of childbearing as a condition

of supervised release for a female offender.

Moreover, research has found very few

instances in which an appellate court has

affirmed an order of a trial court restricting

procreative activity as a condition of supervised release for a male offender. Nevertheless,

although court decisions across the country

have been consistent in generally disallowing

this particular condition, the reasons for doing

so have varied from jurisdiction to jurisdiction.

In a California case that preceded the development of this right to its present status, a

probation condition prohibiting a woman

from becoming pregnant without being married was struck down.34 It was central to the

court’s reasoning that the probationer had

been convicted of robbery and that there

was no relationship between robbery and

pregnancy. In a subsequent California case,

People v. Pointer,

35 a California appellate court

once again barred the imposition of a condition precluding a female probationer from

bearing children, even though the condition in

that instance was directly related to the offense

for which she was placed on probation.

In Pointer, the defendant had developed

strange but deeply rooted beliefs regarding

the proper nutrition for her children. The

defendant believed in a very strict low-calorie

vegetarian diet and rejected all forms of protein. She insisted that her children follow

this dietary regiment. The children suffered

severe malnutrition and physical defects as

a result of this diet. The defendant was convicted of child abuse. Because of the defendant’s insistence in following this diet and

the potential that another of her children

would suffer malnutrition, the trial court

ordered her not to conceive during the term

of her probation.

The defendant appealed this condition of

the trial court. The defendant argued that

this condition was an unconstitutional

restriction of her fundamental rights to privacy and to procreate. The appellate court

acknowledged that this condition was reasonable, in that it related to the offense for

which the defendant was convicted, i.e.,

child endangerment. Nevertheless, the Court

further noted that whenever a condition of

probation impinges upon the exercise of a

fundamental right and is challenged on constitutional grounds, the Court must also

determine whether the condition is impermissibly overbroad in addition to determining its reasonableness. In this instance, the

Court found that the purpose for imposing

this particular condition, to wit, protecting

the life and health of a future child, could be

achieved by alternative restrictions less subversive to the defendant’s fundamental right

to procreate. Thus the appellate court invalidated this condition of probation.

Since this decision was rendered, several

other appellate courts have invalidated conditions of probation restricting a defendant’s

right to procreate. In Thomas v. State

,

36

a

Florida appellate court struck a condition

of probation ordering a probationer not to

become pregnant during the term of her

probation unless she was married on the

grounds that it bore no relationship to the

offense for which she was convicted and was

not reasonably related to future criminality.

In People v. Ferrell,

37 an Illinois appellate court

struck down a condition prohibiting a probationer from engaging in any activity with

the reasonable potential of causing pregnancy

on the grounds that a state statute forbade a

court from ordering a probationer to use a

form of birth control as a condition of probation. Finally, in United States v. Smith,

38

United States Eighth Circuit Court of

Appeals struck a condition that prohibited
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a probationer from conceiving another child

with someone other than his wife.

One case that affirmed a trial court’s decision to order a probationer not to conceive a

child as a condition of probation is State v.

Kline.

39 In this case, the defendant, who had

a history of abusing his children, was convicted of first-degree criminal mistreatment

of a child. The trial court ordered that he

not father any children before he completed

a drug counseling and anger management

treatment program. On appeal, the Oregon

appellate court affirmed the imposition of

this condition. It was clear that this condition was reasonably related to the offense for

which he was convicted. Moreover, because

the condition did not a permanently ban

him from ever having children again but

made conceiving another child contingent

upon completing certain treatment programs, the Court found that this condition

did not impermissibly infringe on his fundamental right to procreate.

The United States Supreme Court has yet

to rule on the propriety of restricting one’s

right to procreate as a condition of probation or parole. Thus it has yet to be finally

resolved whether this right can be infringed

under certain circumstances. Nevertheless

although various courts have invalidated this

condition for various reasons, including the

impracticality of enforcing such a condition, underlying each court’s decision is the

assumption that the right to procreate is a

fundamental constitutional right and that

the court will apply a strict scrutiny test for

determining whether the state has demonstrated a compelling interest for validating

this condition.

F. Travel 

Another nonspecific but important right protected by the Constitution concerns travel.

Banishment conditions, when challenged, are

usually invalidated as against public policy

and as not related to the offense.40 Also, orders

to deport a non-U.S. citizen as a condition of

probation or parole have invariably been

held to be invalid, principally on the grounds

that said action by the court impermissibly

infringes on the authority of the United States

Immigration and Naturalization Service to

make that determination.41

However, the limitation on travel within

a city or region may survive where firmly

linked to rehabilitative goals or if it bears

a reasonable relationship to the offense for

which the defendant was convicted or relates

to the future criminality of the probationer

or parolee. Moreover, a condition requiring

a probationer or parolee to remain within

a specified geographic region has generally

been upheld as a valid exercise of the court’s

or parole board’s authority. Finally, the use of

the Interstate Compact to determine whether

a state will provide courtesy supervision for a

probationer or parolee convicted in another

state does not constitute banishment.

However, requests to travel at the instigation

of a parolee may well be denied without violating a constitutional right of the offender.

In Berrigan v. Sigler,

42 war protestors challenged the federal parole board’s denial of

permission to make a trip to North Vietnam.

This prohibition was upheld because it was

consistent with the foreign policy interests

of the United States and because it was necessary in order for the board to fulfill its duty

to supervise those for whom it was responsible. Nevertheless if the action of the parole

board to deny the offender a travel permit

had solely been predicated on the content of

the offender’s speech, then the Court would

have more closely scrutinized the action of

the parole board.

G. Self-Incrimination 

Conviction does not void or lessen a person’s

constitutional right not to testify against

himself. Two courts of appeals, faced with

probation conditions regarding self-disclosure

on tax returns, clarified under what circumstances a probationer could be required to

furnish incriminating information about
94CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

himself or herself. In one case, a probationer

had been ordered to file tax returns without

claiming his fifth amendment privilege.43 In

the other, a probationer was ordered to file

amended tax returns.44 The first of these

conditions was held to be improper, while

the second was approved. In the latter case,

while the filing of amended returns was

called for—and presumably complete returns

were what the court had in mind—there was

no attempt to interfere with the probationer’s

possible exercise of a constitutional right; he

could comply with the condition, literally,

and on the amended return claim his fifth

amendment privilege. This would not violate the condition. Hence, probation could

not be revoked for exercising an explicit

right. In the former case, however, for the

mere assertion of the right not to incriminate himself, the probationer would open

himself up to revocation.

Another fifth amendment issue arises when

the probationer or parolee is required by a

condition (regular polygraph tests, for example) to disclose information that could be

used against him in a new criminal proceeding. In such circumstances, the result of a

fifth amendment challenge to the condition

has turned on the following: (1) whether the

government could reasonably have expected

incriminating evidence to be forthcoming;

(2) whether use immunity was promised; and

(3) whether fifth amendment rights were voluntarily, knowingly, and intelligently waived.

In Minnesota v. Murphy

,

45 the Supreme Court

recognized that although a person on probation could not be compelled to waive his

or her fifth amendment right against selfincrimination, the State, i.e., a probation

officer, could ask an incriminating question

to a probationer, and the probationer, if he

or she voluntarily answered the question,

would have waived any complaint that his

or her fifth amendment right against selfincrimination was violated. In Murphy, the

defendant had been granted probation for

the offense of false imprisonment. Prior to

the commission of this offense, the defendant had been suspected of raping and murdering a teenage girl. One of the conditions

that the trial court imposed in his probation case was that the defendant attend sex

offender counseling. While in counseling,

the probationer admitted to his therapist

that he had, indeed, murdered the girl. The

therapist then contacted his probation officer regarding this admission, and the officer

requested that the defendant report to her

office. While visiting with his probation officer, the defendant admitted that the statement he had made in therapy was true. This

statement was used to convict him of the

murder of the teenage girl.

The defendant argued before the United

States Supreme Court that he should have

been Mirandized prior to being interviewed

by his probation officer about the statement

he made to his therapist. Moreover, the defendant argued that his incriminating statement should not have been introduced in

his murder trial because the questioning by

his probation officer was violative of his fifth

amendment right against self-incrimination.

The Supreme Court noted that the defendant was not under any form of custody

at the time he was in his probation officer’s

office. This was so, even though if the probationer had failed to report to the office,

his probation could have been revoked. Since

he was not in custody, the Court therefore

held that he need not have been administered a Miranda warning.

The Supreme Court next turned to the

issue concerning whether the introduction

of his incriminating statement at his murder

trial violated his fifth amendment rights. The

Court noted that, in most circumstances, a

state agent is free to ask a question that may

elicit an incriminating response. Moreover,

the Court stated that ordinarily, the right

against self-incrimination is not self-executing.

In other words, a person must expressly

invoke this right or it is waived. Thus the

Court concluded that when the probationer
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in Murphy openly admitted his guilt without asserting his fifth amendment right, he

waived any complaint that any response to

the question would violate his right against

self-incrimination. Hence the Court held

that this statement could be introduced in

his trial for murder.

The issue that the Court never reached in

Murphy concerned the legal implications if

a probationer explicitly refused to answer a

question propounded by his probation officer on the grounds that it might incriminate

him. The Court touched upon this matter

in a footnote in Murphy by stating:

[A] state may validly insist on answers

to even incriminating questions and

hence sensibly administer its probation

system, as long as it recognizes that the

required answers may not be used in a

criminal proceeding and thus eliminates

the threat of incrimination. Under such

circumstances, a probationer’s right to

immunity as a result of his compelled

testimony would not be at stake, “and

nothing in the Federal Constitution

would prevent a state from revoking

probation for a refusal to answer that

violated an express condition of probation or from using the probationer’s

silence as one of a number of factors

to be considered by a finder of fact in

determining whether other conditions

of probation have been violated. . . .”

Id. 1147 n. 7

The Court further stated:

A defendant does not lose this [fifth

amendment] protection by reason of

his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he

makes incriminating statements, if

those statements are compelled they

are inadmissible in a subsequent trial

for a crime other than for which he

has been convicted. Id. 1142

Nevertheless, the Court in Minnesota v.

Murphy did not completely resolve this final

issue, and the above-cited footnote has more

often perplexed other appellate courts confronted with this issue than it has aided

them.46 Thus courts have struggled with

the issue of whether, if a probationer (or

parolee) invokes his or her fifth amendment

right, a statement can still be compelled and

introduced in a revocation proceeding but

not another criminal prosecution. Must a

probationer (or parolee) be granted immunity from prosecution in another case in order

to be compelled to answer any incriminating

question to his or her probation (or parole)

officer? Can the refusal to answer an incriminating question that may link the probationer to another crime still be grounds to

revoke his or her probation?

Despite these unresolved questions, Minnesota

v. Murphy does establish several legal principles. One, a probationer or parolee is not

entitled to a Miranda warning prior to being

interviewed by his or her supervision officer

concerning the conditions of his or her

release. Moreover, a probationer or parolee

cannot be compelled to incriminate himself

or herself in another criminal action; nor

can he or she be required to waive his or her

fifth amendment right against self-incrimination. Finally, if a probationer or parolee

voluntarily responds to a question from his

or her supervision officer, that statement can

be used for any purpose.

H. Some Specific Conditions and

Their Legal Status

1. Shaming or Public Notification 

One recent trend in the field of probation

and parole law concerns the imposition of

conditions of supervised release for the purpose of either shaming an offender or at least

notifying the community of the nature of the

offender’s conviction. Conditions of these

types are better known as “scarlet letter” conditions. Over the last decade, public notification laws have been enacted throughout
96CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

the country to inform the public of the residence of sex offenders. These laws vary from

state to state, with some laws requiring

information regarding the residence of a sex

offender published in a local newspaper and

others requiring residents living near a convicted sex offender to be individually notified

of the residence of the offender. Although the

legislative purpose of these laws is to protect

the community by informing persons of

potentially dangerous offenders living in

their midst, these laws have a tendency to

shame the offender because often the identify of these offenders, including their photograph, and a description to the crime they

committed are made public through either

a newspaper or a Web site on the Internet.

A more controversial condition of probation

or parole is one that requires an offender to

personally proclaim his or her guilt to the

public. Appellate courts in the country are

sharply divided regarding the validity of

such a condition. Several jurisdictions have

approved the imposition of scarlet letter conditions. In Goldschmitt v. State,

47 a trial court

ordered a probationer, convicted of drunk

driving, to place a bumper sticker on his

car reading “Convicted D.U.I.—Restricted

Licensee” as a condition of probation. The

appellate court upheld the imposition of this

condition, stating that it served a sufficient

rehabilitative purpose and that it did not

constitute cruel and unusual punishment. In

Ballenger v. State,

48 a Georgia appellate court

upheld the imposition of a condition requiring a probationer to wear a fluorescent pink

plastic bracelet imprinted with the words

“D.U.I. CONVICT.”

Nevertheless a number of jurisdictions have

disallowed the imposition of scarlet letter conditions. In People v. Heckler,

49 the trial court

imposed a condition on a probationer, convicted of shoplifting, that he wear a T-shirt

bearing a bold, printed statement of his status as a felony theft probationer whenever

he was outside his actual living quarters. The

appellate court, relying on state constitutional

grounds, found that this condition impinged

upon his inalienable right to privacy. The

Court further noted that this condition,

which required him to wear this T-shirt

whenever he was outside his home, would

undermine certain other aims of his probation, such as procuring gainful employment

and staying employed.

In another case, People v. Meyer,

50 a trial court

ordered a defendant to erect at his home a

4- by 8-foot sign with 8-inch-high lettering

that read “Warning! A Violent Felon Lives

Here. Enter at Your Own Risk!” The Illinois

Supreme Court found that the purpose of

this sign was to inflict humiliation on the

probationer. The court further noted that the

statutory provisions for probation in the State

of Illinois did not include humiliation as a

punishment. Thus, the court disallowed this

condition. Finally, in People v. Letterlough

,

51

the New York Court of Appeals rejected the

imposition of a condition that the defendant

affix to the license plate of any vehicle he

drove a fluorescent sign stating “Convicted

DWI” on the grounds that this condition was

not reasonably related to the defendant’s rehabilitation and only the legislature had the

authority to create a new form of punishment, to wit, humiliation.

These cases indicate a split in the jurisdictions of the country. Those courts that have

disallowed the imposition of scarlet letter or

shame conditions have usually done so on

the grounds that the trial court exceeded its

statutory authority in doing so, thus leaving

open the question that a state legislature

could amend its probationary statutes and

authorize a trial court to impose a scarlet letter condition. Only a court in the State of

California has disallowed the imposition of

a scarlet letter condition on constitutional

grounds, and in that instance, the court

found the condition to be invalid on state

constitutional grounds and not on federal

constitutional grounds. 

Those jurisdictions that have upheld this

condition have done so on the grounds that

this condition furthers the rehabilitation
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aims of probation by deterring the offender

from committing future crimes of the same

nature as the one for which he or she was

convicted. These courts have also held that

shame or scarlet letter conditions do not violate the eighth amendment’s proscription

against cruel and unusual punishment.

Nevertheless the United States Supreme

Court has yet to rule on this matter, so the

issue concerning whether a scarlet letter condition violates the eighth amendment to the

United States Constitution has yet to be

conclusively resolved.

2. Polygraphs 

Another recent trend in the imposition of

certain conditions of release is the requirement that a probationer or parolee submit

to a polygraph examination. This condition

has been increasingly utilized throughout

the country, especially for sex offenders.

Courts have generally considered the use of

polygraphs for three purposes: (1) as an aid

to treatment or counseling; (2) as a means

to enforce other conditions of supervision

imposed by the court or parole board; and

(3) as an investigative tool to detect the

commission of further crimes. Although

courts in a number of jurisdictions have

approved the use of polygraphs as a condition of release, courts have not necessarily

approved their use for all of the above-stated

purposes. Some courts have limited the use

of polygraphs only as an aid to further the

rehabilitative treatment of an offender, while

other courts have condoned the use of polygraphs for much more expansive purposes.

One court case that has recently ruled on

the use of polygraph examinations as a condition of probation and has approved its

use for all of the above-stated purposes is ex

parte Renfro.

52 In this case, the defendant was

on probation for the offense of indecency

with a child. Midway through the term of

his probation, the trial court modified his

conditions by requiring him to submit to a

polygraph examination every 6 months. The

defendant appealed the imposition of this

condition, arguing that the only purpose

that the court could impose this condition

was to further his treatment as a sex offender

and that he had already completed his courtordered counseling.

The appellate court considered the various

purposes for which a trial court could

impose this condition. The Court noted that

the polygraph condition helped to monitor

compliance with certain other conditions

imposed by the trial court, to wit, restricting

the defendant’s contact with young children.

The Court also noted that because this condition was aimed at deterring and discovering criminal conduct most likely to occur

during unsupervised contact with minors,

the condition was reasonably related to

future criminality. Thus the appellate court

approved the imposition of this condition

for reasons other than to further the treatment of the probationer and rejected his

contention that this modified condition was

invalid.

3. Work as a Condition—Paid or Unpaid

Volunteer

It is a common practice to require probationers or parolees to hold employment

and/or perform community service work.

While such conditions are routinely upheld,

they create potential liability issues. In the

case of a paid employee who is injured or

causes injury on the job, normal rules of

respondeat superior, to wit, that the superior

is responsible for what a subordinate does,

may create liability.

However, in the case of a volunteer work

assignment, who would be liable? Volunteers

may not be covered by community agency

liability or medical insurance. Workmen’s

compensation protection may not apply to

volunteers. Ohio53 requires offenders to pay

a fee for liability insurance. Minnesota statutorily covers probationers under a state compensation plan for injured workers.54 Texas,

on the other hand, specifically excludes probationers performing community service

from worker’s compensation coverage.55
98CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

Where the court requires work as a condition, judges are usually protected from liability by an absolute immunity. Parole boards

enjoy a qualified immunity. Probation and

parole officers share those immunities insofar

as they are exercising professional discretion.

While there is as yet no precedent for guidance, it is likely that a community service

volunteer could do grievous harm to a party

who could then find no defendant capable of

redressing the injury. Would a probation or

parole officer be liable for arranging a placement without also arranging for insurance

protection? Would failure to insure or to

make placements in an agency insuring volunteers be considered ministerial and, thereby,

unprotected by traditional legal principles of

immunity? To avoid potential liability, probation agencies might purchase insurance

to cover volunteer work by offenders.

■■■

III. VAGUENESS AND

REASONABLENESS AS

LIMITATIONS

A. Vagueness

Courts have settled on no standard for interpreting ambiguous conditions. Because such

conditions may impinge upon constitutional

rights, probationers and parolees (or their

attorneys) may seek interpretation from probation and parole officers. Judicial review of

conditions, usually in the context of revocation hearings, will generally incorporate officers’ interpretations of conditions. Officers,

therefore, would find it useful to make a

written record of their interpretations or, in

order to prevent the need for judicial review,

to request the sentencing court or parole

board imposing the vague condition for an

interpretation.

The degree in which an appellate court

reviewing the imposition of a particular

condition of probation or parole would

deem that condition too vague for enforcement purposes varies from jurisdiction to

jurisdiction. Nevertheless if a parole or probation officer is unable to make an objective

and reasonable interpretation of a condition,

then that officer should petition the court

or parole board imposing that condition to

clarify its meaning and possibly to modify

the condition in order to remove any vagueness or ambiguity about it. Nevertheless, no

matter how clearly an officer understands

the tenor of the condition, if the officer does

not convey that understanding of the condition to the person the officer is supervising

and ascertain that the offender understands

what is expected of him or her, then it is

doubtful that an appellate court would

uphold any sanction imposed by the sentencing court or parole board for a violation of that condition. (see section IV,

Explanation of Conditions, in this chapter).

B. Reasonableness

In addition to the requirements that a condition be related to rehabilitation of the

offender and that it not unduly interfere

with constitutional rights, the courts seem

to insist that a challenged condition meet a

general test of reasonableness before it can

be enforced. “Reasonable” may vary from

jurisdiction to jurisdiction. For example,

some jurisdictions hold that if the condition

does not directly relate to the offense for

which the offender was convicted, the condition cannot be imposed.56 Other jurisdictions allow more leeway for the imposition

of conditions, especially if those conditions

directly or indirectly contribute to the rehabilitation of the offender.57

The following conditions have fallen, apparently because there is such a test:

1. A probationer was ordered to abstain

from alcohol for 5 years. Evidence that

he was an alcoholic led the court to deny

probation revocation when the condition

was violated.58
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2. A former serviceman convicted of accepting kickbacks was placed on probation on

condition that he forfeit all personal assets

and work without compensation for 3

years, or 6,200 hours. The condition was

struck down as unduly harsh in its cumulative effect.59

3. A probationer was ordered to reimburse

the government for the cost of courtappointed counsel and a translator. The

condition was held unconstitutional

because it was not made excusable if the

probationer lacked the ability to pay.60

4. A probationer was ordered as a condition

of probation to maintain a clean house

and to keep her children clean. This condition was struck down because it did not

relate to the defendant’s behavior, which

gave rise to her conviction for larceny and

drug crimes.61

■■■

IV. EXPLANATION OF

CONDITIONS

Probationers and parolees must have

knowledge of the conditions they are

expected to follow. Case law suggests the

wisdom of establishing the regular practice

of providing the offender with a copy of the

release conditions.62 But courts will generally

infer a condition prohibiting criminal acts.63

One case speaks to the issue of explanation

of conditions, distinguishing that duty

from that of merely informing. In Panko v.

McCauley,

64 a condition was held to be unconstitutionally vague as applied to the petitioner.

The condition forbade the petitioner from

“frequenting” establishments selling alcoholic beverages. The condition was struck

down, since there was no evidence that the

petitioner understood that the term “frequent” meant “visit.” This case implies that

there may be a duty to explain conditions.

Even if there is a duty to explain conditions

sufficiently to assist the offender in avoiding

unintentional violations, the scope of the

duty is apt to be limited by a reasonableness

concept. It is not likely, for example, that the

officer will be required to anticipate and warn

against every possible type of violation. In a

Ninth Circuit case in which revocation of

probation was being appealed, the probationer

defended his actions in part by asserting that

he had no specific notice that training foreign

military personnel would be charged as a

violation of conditions (it was admitted that

no law was violated, technically). The court

of appeals was satisfied that the comments

of the judge condemning the probationer’s

former life as a mercenary, together with the

probation officer’s warning to get rid of his

guns and other comments, were sufficient to

notify the probationer of what behavior was

expected of him while on probation.65

■■■

V. MODIFICATIONS

OF CONDITIONS

Modifications of the conditions of probation or parole usually occur whenever

there is a change in circumstances involving

the person under supervision. The court or

parole board may impose a modified condition of probation for rehabilitative purposes

(e.g., to address a previously unidentified or

new need of the probationer or parolee), or

for punitive purposes (e.g., to apply a sanction for a violation of the initial conditions

of probation or parole). Another reason the

modifications may occur is to resolve any

ambiguity in a previously imposed condition. Finally, certain conditions may have to

be modified to conform to a newly enacted

legislative enactment (e.g., a new sex offender

registration requirement).

Modification may be requested by the person under supervision or by the field officer

assigned the case by the supervisory court
100CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

or parole board. In lesser instances, the

modification may be initiated by the supervisory court or the parole board on its own.

Modification may be toward easing conditions, or toward adding, clarifying, or

extending them. Typically, field officers

seek additional restrictions or increased

supervision to enhance the likelihood of

the offender’s progress.

Because parole and probation officers may

regularly initiate revocation hearings, it is

normally assumed such officers have the

right to suggest the need for modification

or change of conditions to the court or the

parole board. In a few jurisdictions, parole

and probation officers themselves have the

power to modify conditions. In these jurisdictions, the officer may go ahead and modify the conditions, but only if it is clear

that authority to modify conditions is given

to the officer. In the past, the National

Advisory Commission on Criminal Justice

Standards and Goals has recommended that

parole officers be authorized to carry out

their requested modifications pending parole

board approval.66

Most jurisdictions, by either legislation or

court decisions, do not authorize officers to

modify conditions on their own. Since this

act is generally considered a judicial or board

function, most jurisdictions in the country

hold that, absent an express statutory authorization to the contrary, any modification by

an officer would be an improper delegation

of authority.67 In reality, however, many

judges do in fact delegate to the officer the

power to modify or change conditions, or to

specify the details of an imposed condition

(such as the need for psychological treatment).

It is also a common practice for judges to

provide that the probationer may be subject

“to such other conditions as the probation

officer may deem to impose.”

Modifying or changing probation conditions

by the officer alone, without authorization,

must be avoided if at all possible. It is proper

for the officer to suggest that conditions be

modified or changed, but unless otherwise

clearly authorized, only the judge or board

should make that change. If change or modification by the officer is unavoidable (either

because that judge insists on such delegation

despite invalidity or because of emergency

conditions), the officer is best protected

against liability by putting the modification

or change in writing and making sure that

the offender accepts the condition in writing. Once this is done, a copy should be

sent to the judge or board to inform this

authority of the change.

In sum, officers should not modify or change

conditions unless clearly authorized by law or

court decisions. As much as possible, modifications or changes must be done by the

judge or court because they enjoy absolute

immunity, whereas the officer does not.

There appear to be no clear due process

standards for modification. Case law suggests notice is probably necessary; however,

it is ambiguous as to the right to a hearing.68

In those instances in which a hearing may

be required, state statute usually imposes

this mandate.69 Moreover, whether there

must be a showing that the offender violated

one or more of the conditions imposed in

order to modify the conditions of supervision or whether the sentencing court or

parole board may do so upon a determination that such a modification would be in

the best interests of the offender or society

is largely controlled by state law.70 Whether

a liberty interest may be at stake is as yet

untested except by analogy to the weak

authority of the rescission cases.

As parole and probation officers raise their

professional standards, the possibility of an

implied duty to seek modification may arise.

If, for example, a probationer or parolee is

obviously in need of a different supervision

than that originally deemed appropriate, a

resulting victim—injured by the inadequately supervised offender—may allege that

failure to seek modification is an act of negligence, implying liability. For this reason,
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it is crucial for officers to be aware of the

supervisory authority granted them by their

particular jurisdiction.

■■■

VI. EXTENSION

Conviction of an offense allows the state

to intervene in the offender’s life in

specific ways authorized by statute. These

limits are in general rigidly observed because

of the severe nature of the infringements

they impose on the rights of individuals. A

corollary of this rule is that once service of

sentence has begun, it is not subject to detrimental modification (absent special circumstances not relevant here).71 It also follows

that once a sentence has been served, jurisdiction is lost over the offender.

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

courts have not adopted, is to consider probation and parole time as the equivalent of

confinement, thus freeing the offender at

the end of the original period. While the

states vary on the extent to which they give

credit for street time against the period of

actual confinement, there is agreement that

entry into probation or parole status extends

the time during which consideration may

be given to imprisoning or reimprisoning

the offender.

The question concerning what authority

the court or parole board has to take action

against an offender after the period of supervision has expired arises in several situations.

In one, proceedings are begun to revoke probation or parole within the probation or

parole term. In this case, even when the proceedings are not completed within the usual

period, the new decision is given effect as

long as the delay was not due to a lack of

diligent prosecution on the state’s part. Thus,

a parolee who absconds from supervision,72

or a probationer who seeks continuances

that delay the hearing,73 is not permitted to

object that the proceedings and decision are

untimely. Similarly, a New Jersey court held

that the time for revoking New Jersey parole

was extended during the period the offender

was serving a New York sentence imposed

while the offender was on parole, even though

the New York court made the sentence concurrent with the original New Jersey sentence.74

An issue also arises when a new sentencing

law comes into effect after an offender’s conviction. Here, a different result is apt to occur.

For example, California courts have held75

that new penal laws extending the period of

parole supervision may not be given retroactive effect, at least for those paroled under the

more favorable terms of prior law. To do otherwise would run afoul of the ex post facto

clause of the Constitution, the courts said. 

■■■

VII. TERMINATION

The federal parole law provides that

parole does not end automatically at

the conclusion of the term ordered, but continues until affirmatively granted after a termination hearing. The statute provided the

hearing had to be held within 5 years when

Robbins v. Thomas76 arose. In that case, the

hearing was 51

/2 years after parole was granted. On the day after the hearing, but before

the parole commission made a decision on

termination, Robbins was arrested on a new

charge. The parole commission reopened its

file to give consideration to this fact and

decided to extend parole. Robbins argued

that the commission was without power to

consider anything occurring after 5 years or,

in any event, after the termination hearing.

The Ninth Circuit Court of Appeals disagreed, finding that until actual termination the commission could—indeed, was

expected to—consider relevant evidence.
102CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

The court went on to rule that the procedures to be followed in such cases were

equivalent to those provided for revocation

hearings. While the decision not to terminate parole does not deprive a parolee of his

conditional liberty, which would activate

Morrissey rights, the statute appears to make

termination automatic in the absence of an

affirmative finding that the parolee is unlikely

to respect the law. Thus, there is more than

a “mere expectation” of the termination benefit, and some process is clearly due. Other

courts could well choose a less-than-Morrisey

standard, however.

■■■

VIII. CHANGES IN

STATUS OF THE

OFFENDER Generally there are three legal avenues

under which a probationer or parolee

may be required to provide notice of a change

of status. An offender may be required to

provide information regarding a change of

status either (1) as a condition of release or

(2) pursuant to a departmental policy of the

supervising agency. Third, an offender may

be required to provide notification of a

change in status in accordance with a statutory mandate. These notification requirements may require a probationer or parolee

to report status changes either to the court

or parole board, the officer supervising the

offender, or even to a third party.77 

Ordinarily, conditions requiring a probationer or parolee to report changes of status

have been upheld on appeal. This is especially true if the condition requires the offender

to report changes in status that may have a

bearing on the enforcement of the other

conditions of supervision or may affect the

likelihood of successfully rehabilitating the

offender. In addition, Courts have generally

approved an administrative policy established by the officer or agency supervising

the offender that requires the offender to

report to the officer or agency any changes

in the offender’s status. Courts have deemed

that such an administrative policy does not

constitute an improper usurpation of judicial or board authority but, instead, have

held that such a policy is reasonably and

necessarily related to the authority of the

supervising agency to enforce the conditions

imposed by the court or board.

Finally, a state statute may mandate that a

probationer or parolee (or his or her supervision 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.

For example, the State of Texas has passed a

statute providing that if a juvenile or adult

probation officer or a parole officer supervising a person required under state law to

register as a sex offender receives information to the effect that the person’s status has

changed in any manner that affects proper

supervision of the person, including a

change in the person’s physical health, job

status, incarceration, or terms of release, the

supervising officer shall promptly notify an

appropriate local law enforcement authority

of that change.78 Because of the inherent

sensitivity of information bearing on the status of an offender, it is strongly recommended that probation and parole officers strictly

follow the mandates established by a statute,

court order, or administrative policy regarding the release of any information concerning a change in status and do not deviate

from the statutory, judicial, or office procedures controlling the disclosure of such

information.

■■■

SUMMARY This chapter has examined several issues

concerning the setting of conditions of

probation and parole. While there is rarely
103

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STATUS

any dispute concerning conditions, problems

can arise when a special condition either

infringes upon a fundamental constitutional

right or is not clearly associated with a rehabilitative purpose. The so-called fundamental

rights, such as “free speech” and “free exercise of religion” are given special treatment

by the Courts.

In the view of the United States Supreme

Court, any right so essential to our concept

of liberty that to do away with it would fundamentally alter our political and social system is a fundamental right. Restrictions in

these areas will always be considered “suspect”;

that is, such conditions will be given a stricter

review than other restrictions. Often validation of a condition is dependent upon supplying the reviewing court with sufficient

information to link the government’s interest

in rehabilitation with the challenged condition.

A few jurisdictions authorize officers to

modify or change conditions, but most

jurisdictions do not. Unless clearly authorized by law or court decisions, an officer

should not modify or change conditions

because possible liability attaches should

such conditions turn out to be unconstitutional or injurious to the offender or a

third party.

No clear due process standards have been

set for modification, but case law suggests that

notice is probably necessary. Moreover, extensions of probation or parole are generally

frowned upon because they constitute further

deprivations of freedom. Also, when probation/parole actually terminates is governed by

state law, not by a constitutional standard.

Reporting requirements necessitating that

a probationer or parolee inform either his

supervision officer or the court or parole

board of a change of status have generally

been deemed a valid exercise of the authority

of the court/parole board or supervisory

agency. Nevertheless, probation and parole

officers need to be aware of any statutory

mandates requiring probationers or parolees

to provide information concerning any change

in their status. Finally, supervision officers

must exercise extreme caution in disclosing

information regarding the change in status

of a probationer or parolee.

Notes

1. See United States v. Consuelo-Gonzales,

521 F.2d 259 (9th Cir. 1975). See also, Poth v.

Templar, 453 F.2d 330 (10th Cir. 1971).

2. See State v. Maas, 41 Or. App. 133, 597 P.2d

838 (1979), where the Oregon Court ruled that

a probation condition added by a probation

officer could not serve as the basis for revocation because the officer had no authority to

add conditions.

3. See Morrissey v. Brewer, 408 U.S. 471 (1973).

4. See Lacy v. State, 875 S.W.2d 3 (Tex. App.

Tyler, 1994).

5. On December 31, 1998, approximately

3,417,600 adults were under federal, state,

or local jurisdiction on probation and nearly

705,000 were on parole. See Probation and

Parole Statistics, Bureau of Justice Statistics,

U.S. Department of Justice, at www.ojp.usdoj.

gov/bjs/pandp.html.

6. See Knight v. State, 593 So. 2d 1202 (Fla.

App. 1992), in which a Florida appellate court

ruled that a probation condition requiring the

probationer “to show respect to officers connected with the criminal justice system” was too

vague to inform the probationer of what conduct

was acceptable or unacceptable.

7. See Morrissey v. Brewer, 408 U.S. 471 (1973).

8. The United States Supreme Court has recognized that even in a prison setting, inmates still

retain certain fundamental rights. In Wolff v.

McDonnell, 94 S. Ct. 2963 (1974), the Supreme

Court stated that “though his rights may be

diminished by the needs and exigencies of the

institutional environment, a prisoner is not

wholly stripped of constitutional protections

when he is imprisoned for a crime.”
104

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

9. Sobel v. Reed, 327 F. Supp. 1294 (S.D.N.Y.

1971).

10. Id. at 1304.

11. Id. at 1303.

12. Id. at 1306.

13. Hyland v. Procunier, 311 F. Supp. 749 (N.D.

Cal. 1970). See also, United States v. Lowe, 654

F.2d 562 (9th Cir. 1981); Barlip v. Commonwealth

Board of Probation and Parole, 45 Pa. Commnw.

458, 405 A.2d 1338 (1979); State v. Camp, 59

N.C. App. 38, 295 S.E.2d 766 (1982).

14. 311 F. Supp. 749 (N.D. Cal. 1970) at 750.

15. Id. at 750-751.

16. Porth v. Templar, 453 F.2d 330 (10th Cir.

1971).

17. Note, Fourth Amendment Limitations on

Probation and Parole Supervision, 1976 Duke L.

J. 71, 75 (1976).

18. Porth v. Templar, 453 F.2d at 76.

19. Porth v. Templar, 453 F.2d 330, 334 (10th

Cir. 1971). Accord, United States v. Patterson,

627 F.2d 760 (5th Cir. 1980), cert. denied, 101

S. Ct. 1378 (1981). 

20. United States v. Furukawa, 596 F.2d 921

(9th Cir. 1979).

21. United States v. Tonry, 605 F.2d 144

(5th Cir. 1979). 

22. Commonwealth of Massachusetts v. Power,

420 Mass. 410, 650 N.E.2d 87 (1995).

23. United States v. Crandon, 173 F.3d 122 (3d

Cir. 1999). See also, State v. Riley, 121 Wash. 2d

22, 846 P.2d 1365 (1993), where the appellate

court approved the imposition of a condition of

probation forbidding the defendant, convicted of

computer trespass, from associating with other

computer hackers and communicating with

computer bulletin boards.

24. See United States v. Bird, 124 F.3d 667 (5th

Cir. 1997). See also, Crabb v. State, 754 S.W.2d

742 (Tex. App. Houston [1st Dist.], 1988).

25. See Rich v. State, 640 P.2d 159 (Alaska Ct.

App. 1982); Whitehead v. State, 645 S.W.2d 482

(Tex. Crim. App. 1982); People v. Warren, 89

App. Div. 501, 452 N.Y.S.2d 50 (1982).

26. See Watson v. State, 17 Md. App. 263, 301

A.2d 26 (1973); Glenn v. State, 168 Tex. Crim.

112, 327 S.W.2d 763 (1959); Dulin v. State,

169 Ind. App. 211, 346 N.E.2d 746 (1976).

27. See O’Lone v. Estate of Shabazz, 107 S. Ct.

2400 (1987).

28. See Jones v. Commonwealth, 185 Va. 335,

38 S.E.2d 444 (1946). See also, L.M. v. State,

587 So. 2d 1202, (Fla. App. 1992).

29. Warner v. Orange County Department of

Probation, No. 1760 (2d Cir. 1996), decided

September 9, 1996.

30. See Griffin v. Coughlin, WL 317180 (N.Y.

June 11, 1996), in which the New York Court of

Appeals made a ruling similar to that of the 2d

Court of Appeals in Warner v. Orange County.

31. See West v. State, 160 Ga. App. 855, 287

S.E.2d 694 (1982). See also State v. Martin, 282

Or. 583, 580 P.2d 536 (1978); In re Peeler, 266

Cal. App. 2d 483, 72 Cal. Rptr. 254 (1968); and

State v. Thomas, 428 So. 2d 950 (La. Ct. App.

1983).

32. See State v. Livingston, 53 Ohio App. 2d

195, 372 N.E.2d 1335 (1976); Skinner v.

Oklahoma, 316 U.S. 535 (1942); People v.

Dominguez, 256 Cal. App. 2d 623, 64 Cal.

Rptr. 290 (1967).

33. See Wiggins v. State, 386 So. 2d 46 (Fla.

Dist. Ct. App. 1980); Michalow v. State, 362

S.2d 456 (Fla. Dist. Ct. App. 1978).

34. See People v. Dominguez, 256 Cal. App. 2d

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

State, 587 So. 2d 1202 (Fla. App. 1992). 
105

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CHANGES IN

STATUS

35. People v. Pointer, 199 Cal. Rptr. 357

(Cal. App. 1st Dist. 1984).

36. Thomas v. State, 519 So. 2d 1113 (Fla. App.

1st Dist., 1988).

37. People v. Ferrell, 659 N.E.2d 992 (Ill. App.

4th Dist. 1995).

38. U.S. v. Smith, 972 F.2d 960 (8th Cir. 1992).

39. State v. Kline, 963 P.2d 697 (Or. App.

1998). See also, Krebs v. Schwartz, 568 N.W.2d

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

the appellate court approved a condition requiring a defendant convicted of sexually assaulting

his daughter to discuss and obtain permission

from his probation officer prior to engaging in

a sexual relationship. 

40. People v. Baum, 251 Mich. 187, 231

N.W.95 (1930) (banishment from state for

5 years); People v. Smith, 252 Mich. 4, 232

N.W.397 (1930) (move to another neighborhood). See also, State ex rel. Halverson v. Young,

278 Minn 381, 154 N.W.2d 699 (1967); Flick v.

State, 159 Ga. App. 678, 285 S.E.2d 58 (1981),

State v. Gilliam, 274 S.C. 324, 262 S.E.2d 923

(1980); Carchedi v. Rhodes, 560 F. Supp. 1010

(S.D. Ohio 1982).

41. Hernandez v. State, 613 S.W.2d 287 (Tex.

Cr. App. 1981). See also, Martinez v. State, 627

So. 2d 542 (Fla. App. 1993).

42. Berrigan v. Sigler, 358 F. Supp. 130 (D.D.C.

1973), aff’d 499 F.2d 514 (D.C. Cir. 1974). See

also, Dukes v. State, 423 So. 2d 329 (Ala. Crim.

App. 1982) (person convicted of theft from certain store ordered to stay out of that store during

probation term); State v. Churchill, 62 N.C.

App. 81, 302 S.E.2d 290 (1983) (cab driver

guilty of trespassing at bus station ordered to stay

away from bus station and adjoining restaurant

unless traveling by bus with permission of probation officer). But, see, In re White, 97 Cal. App.

3d 141, 158 Cal. Rptr. 562 (1979) (affirming,

under the California Constitution, the “basic

human right” of intrastate travel).

43. United States v. Conforte, 624 F.2d 869 

(9th Cir.), cert. denied, 449 U.S. 1012 (1980). 

44. United States v. McDonough, 603 F.2d 19

(7th Cir. 1979). See also, State ex rel. Halverson

v. Young, 278 Minn. 381, 154 N.W.2d 699

(1967); Flick v. State, 159 Ga. App. 6778, 285

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

324, 262 S.E.2d 923 (1980); Carchedi v.

Rhodes, 560 F. Supp. 1010 (S.D. Ohio 1982).

45. Minnesota v. Murphy, 104 S. Ct. 1136

(1984).

46. For examples of the problems courts have

had in resolving this matter, see Asherman v.

Meachum, 957 F.2d 978 (2d Cir. 1992); United

States v. Ross, 9 F.3d 1182 (7th. Cir. 1993),

judgment vacated on other grounds, 511 U.S.

1124 (1994); and Idaho v. Crowe, 952 P.2d

1245 (Idaho 1998).

47. Goldschmitt v. State, 490 So. 2d 123 (Fla.

Dist. Ct. App. 1986). See also, Lindsay v. State,

606 So. 2d 652 (Fla. App. 4th Dist. 1992).

48. Ballenger v. State, 436 S.E.2d 793 

(Ga. App. 1993).

49. People v. Heckler, 16 Cal. Rptr. 2d 681, 13

C.A. 4th 1049 (1993).

50. People v. Meyer, 176 Ill. 2d 372, 680 N.E.

315 (1997).

51. People v. Letterlough, 655 N.E.2d 146

(N.Y. 1995).

52. Ex parte Renfro, 999 S.W.2d 557 (Tex. App.

Houston [14th Dist.], 1999). Other jurisdictions

that have upheld the validity of polygraph examinations as a condition of probation where the

probationer is convicted of a sex crime are as follows: State v. Lumley, 267 Kan. 4, 977 P.2d 914

(1999); Cassamassima v. State, 657 So. 2d 906

(Fla. Dist. Ct. App. 1995); State v. Tenbusch,

131 Or. App. 634, 886 P.2d 1077, cert. denied,

116 S. Ct. 133 (1995); and People v. Miller, 208

Cal. App. 3d 1311, 256 Cal. Rptr. 587 (Cal. Ct.

App. 1989). 
106CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

53. Ohio Rev. Code Ann. Sec. 2951.02 (g). 

54. Minn. State. Ann. Sec. 3.739 (West).

55. Vernon’s Tex. Ann. Code Crim. Proc., art.

42.12, sec. 16(c).

56. See Turner v. State, 666 So. 2d 212 (Fla.

App. 2d Dist. 1995), in which the appellate

court held that the trial court could not order

the defendant to submit to drug evaluation and

treatment for an offense that was not alcohol or

drug related.

57. See Vernon’s Annotated Texas Code of

Criminal Procedure, art. 42.12, sec. 11(a), which

authorizes the trial court to impose any reasonable condition that is designed to protect or

restore the community; protect or restore the

victim; or punish, rehabilitate, or reform the

defendant.

58. Sweeny v. United States, 353 F.2d 10 (7th

Cir. 1967). See also, Turner v. State, 666 So. 2d

212 (Fla. App. 2d Dist. 1995).

59. Higdon v. United States, 627 F.2d 893 (9th

Cir. 1980). Compare, United States v. Arthur,

602 F.2d 660 (4th Cir.), cert. denied, 444 U.S.

992 (1979) (former bank president who misapplied bank funds properly required to accept

employment without salary for 2 years).

60. United States v. Jiminez, 600 F.2d 1172 (5th

Cir.), cert. denied, 444 U.S. 903 (1980). See also,

State v. Asher, 40 Or. App. 455, 595 P.2d 839

(1979); State v. Langford, 12 Wash. App. 228,

529 P.2d 839 (1974).

61. State v. Graham, 636 A.2d 852, 33 Conn.

App. 432 (1994).

62. Bennett v. State, 164 Ga. App. 239, 296

S.E.2d 787 (1982); Acosta v. State, 640 S.W.2d

381 (Tex. Crim. App. 1982); Meredith v. Raines,

131 Ariz 244, 640 P.2d 175 (1982) (oral notice

of parole conditions permissible, but must be

written notice for probation conditions).

63. See Joynes v. State, 437 N.E. 137 (1982);

Shaw v. State, 164 Ga. App. 208, 296 S.E.2d

765 (1982) (past experiences on parole or probation source of knowledge of condition requiring

obedience to law). But, see also, Neely v. State, 7

Ark. App. 238, 647 S.W.2d 473 (1983), contra

(probationer not given list of conditions barring

illegal act).

64. Panko v. McCauley, 473 F. Supp. 325 (C.D.

Wisc. 1979). Information as well as explanation

are statutorily required in some jurisdictions. See,

e.g., Mo. Ann. Stat. Sec. 549.237 (Vernon); N.Y.

Exec. Law Sec. 257(4) (McKinney).

65. United States v. Dane, 570 F.2d 840 (9th

Cir. 1977). See also, United States v. Dane, 587

F.2d 436 (9th Cir. 1978).

66. National Advisory Commission on Criminal

Justice Standards and Goals, Corrections,

Standard 12.7 (1973).

67. See In the interest of T.L.D., 586 So. 2d

1294 (Fla. App. 1991).

68. See United States v. Warden, 705 F.2d 189

(7th Cir. 1983), Forgues v. United States, 636

F.2d 1125 (6th Cir. 1980); Tyra v. State, 644

S.W.2d 865 (Tex. Crim. App. 1982); In re

Appeal in Rinal County, Juvenile Action, 131

Ariz. 187, 639 P.2d 377 (Ct. App. 1981); State v.

Simpson, 2 Ohio App. 3d 40, 440 N.E.2d 617

(1981); State v. Coltrane, 307 N.C. 511, 299

S.E.2d 199 (1983); Kelly v. State, 627 S.W.2d

826 (Tex. Crim. App. 1982).

69. See Russo v. State, 603 So. 2d 1353

(Fla. App. 1992).

70. See Malone v. State, 632 So. 2d 1140

(Fla. App. 1994).

71. See 541 F. Supp. 1253 (1st Cir. 1982); 560 F.

Supp. 745 (2d Cir. 1983); 670 F.2d 507 (5th

Cir. 1982); 699 F.2d 822 (6th Cir. 1983); 681

F.2d 1091 (7th Cir. 1982); 699 F.2d 387 (7th

Cir. 1983); 555 F. Supp. 1344 (7th cir. 1983);

706 F.2d 1435 (7th Cir. 1983); 718 F.2d 921

(9th Cir. 1983); 534 F. Supp. 1015 (9th Cir.

1982); 678 F.2d 940 (11th Cir. 1982); 682 F.2d

1366 (11th Cir. 1982).
107

CHAPTER

7

CONDITIONS, MODIFICATIONS, AND

CHANGES IN

STATUS

72. People ex rel. Flores v. Dalsheim, 66 A.2d

381, 413 N.Y.S.2d 188 (1979).

73. State v. Hultman, 92 Wash. 2d 736, 600

P.2d 1291 (1979).

74. Board of Trustees v. Smalls, 172 N.J. Super.

1, 410 A.2d 691 (1979).

75. In re Bray, 97 Cal. App. 3d 506, 158 Cal.

Rptr. 745 (1979); Matter of Harper, 96 Cal.

App. 3d 138, 157 Cal. Rptr. 759 (1979).

76. Robbins v. Thomas, 592 F.2d 546 (9th Cir.

1979).

77. For example, in People v. Gould, 662

N.Y.S.2d 520 (N.Y.A.D. 2 Dept. 1997), the

appellate court approved the imposition of a

condition on a probationer convicted of sodomy

that he notify future employers of his conviction

if he changes employment.

78. See Vernon’s Annotated Texas Code of

Criminal Procedure, chapter 62.05(a).

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

CHAPTER 8
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
111

CHAPTER

8

SUPERVISION

INTRODUCTION

Over the years, the potential liability for

a field officer for improper supervision

of offenders has risen. Besides the more common concerns of improper disclosure of information regarding the offender, the validity of

searches and seizures, and fiduciary responsibilities arising from the collection of monetary

payments from offenders, there has been an

increasing concern for liability issues arising

from the improper or negligent supervision

of offenders. Under certain circumstances,

not only may offenders file civil suits against

an officer but also even victims of crimes

may potentially assert a civil claim against an

officer. This chapter examines these issues. 

■■■

I. SEARCH AND

SEIZURE ISSUES IN

SUPERVISION

Searches and seizures raise issues of important concerns for field officers who are

supervising offenders. These concerns focus

on the conditions of supervision requiring

released offenders to waive fourth amendment

protections regarding searches and seizures

and on the legality of conducting warrantless searches of offenders in the absence of

a condition authorizing an officer to do so.

Such concerns appear fully justified by the

complexity of the law in this area and by the

frequency with which a search problem may

be encountered. Officers need to be knowledgeable about applicable search and seizure

law in their jurisdictions; parole and probation agencies must keep track of developments in this area and provide training on

an ongoing basis.

A. Griffin v. Wisconsin Is the

Leading Case

The fourth amendment provides:

The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated,

and no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing

the place to be searched, and the persons or things to be seized.

Before 1987, various courts had grappled

with the issue concerning whether warrantless searches and seizures could be performed

on probationers and parolees and whether

searches could be conducted on a standard

of less than probable cause. 

Courts that had allowed searches of probationers and parolees had done so based on a

number of legal theories. A 1976 law review

commentary observed that “in the past,

courts have relied on express waivers by

parolees or probationers, or have invoked

the ‘act of grace’ and ‘constructive custody’

doctrines in order to strip released offenders

of virtually all the fourth amendment guarantees afforded ordinary citizens.”1 Despite

these various legal justifications that had

been advanced by certain lower courts, it

was not until 1987 that the United States

Supreme Court examined this area involving

fourth amendment rights. 

In 1987, the Supreme Court came up with

a decision that clarified this issue. In Griffin

v. Wisconsin,

2 a defendant who had a prior

felony conviction was convicted of resisting

arrest, displaying disorderly conduct, and

obstructing an officer, and the defendant

was placed on probation. While the defendant was on probation, a probation officer

received information from a detective that
112CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

the defendant had a gun in his apartment.

A warrantless search did, in fact, reveal a

handgun at the apartment. Consequently,

the defendant was convicted of the offense

of possession of a firearm by a convicted

felon and sentenced to 2 years in prison.

Under Wisconsin law, probationers were

placed in the custody of the State Department

of Health and Social Services and made subject to conditions set by the court and to rules

and regulations established by the department. One of the department’s regulations

permitted any probation officer to search a

probationer’s home without a warrant as

long as his supervisor approved and as long

as there were “reasonable grounds” to believe

that contraband, including any item that the

probationer could not possess under the probation conditions, would be found at the

premises. Finally, the regulations set forth

what factors an officer should consider in

determining what constituted reasonable

grounds. During the suppression hearing,

the trial court ruled that a search warrant

was not necessary to conduct the search,

that the search itself was reasonable, and

that the fruits of the search could be admitted as evidence in the trial.

The issues before the United States Supreme

Court were whether a warrant was necessary

in order for the officials to conduct a search

of the probationer’s apartment and whether

the search itself was “reasonable” for purposes

of the fourth amendment to the United States

Constitution. The Court noted that a probationer’s home, like anyone else’s, was protected

by the fourth amendment’s requirement that

searches must be “reasonable.” However, the

Court held that a search under these circumstances did not need to be made pursuant to

a warrant. The Court found that the state’s

operation of a probation system presented

“special needs” beyond normal law enforcement that could justify departures from the

usual warrant requirement and that the supervision of probationers constituted a “special

need” of the state that dispensed with the

need to obtain a warrant in order to conduct

a search of the probationer’s home.

The Court further found that these special

needs of the state justified a departure from

the requirement that a search be based on

probable cause. The Court stated that the

special need to supervise a probationer permitted a degree of infringement upon the

privacy of the probationer. Because of the

nature of the probation system, it was proper

for the state to replace the probable cause

standard with a “reasonable grounds” standard as the test for justifying the search.

Moreover, the Supreme Court stated that a

determination of “reasonableness” was not

based on a federal “reasonable grounds” standard. Instead, reasonableness was determined

by a state court’s finding that the search conformed to the regulations issued by the state.

Since the Wisconsin state court found that

the search was made pursuant to a valid regulation governing probationers, the Supreme

Court held that the search of the defendant’s

residence was reasonable within the meaning

of the fourth amendment.

While the Griffin decision resolved several

questions regarding the legality of conducting warrantless searches of probationers and

parolees, the Supreme Court left uncertain

other matters that remain open for further

consideration. First, although the Supreme

Court recognized a reasonableness standard

for conducting warrantless searches, the Court

did not define what constitutes “reasonable.”

Instead, the Court held that reasonableness

would be determined by the courts in individual states. Thus courts have since struggled with determining what level of suspicion

gives rise to a reasonable standard for justifying a warrantless search of a probationer or

parolee. Second, while the Court in Griffin

found that Wisconsin’s regulations in question permitting searches were “reasonable,”

the Court did not address whether a courtimposed condition, in lieu of an express regulation, permitting searches of probationers

or parolees would be reasonable. Finally, the
113

CHAPTER

8

SUPERVISION

Court did not address the issue concerning

whether law enforcement officers could rely

on a statute, regulation, or condition for

conducting an independent search of a

probationer or parolee, or whether only a

supervision officer, either alone or accompanied by a law enforcement officer, could

conduct the search. The following sections

of this chapter will discuss how courts have

addressed these unresolved matters. 

B. Validity of Search as a

Condition of Supervision

Although the United States Supreme Court

in Griffin approved a search conducted pursuant to a state regulation and not imposed

as a condition of supervision, numerous

courts since the Griffin decision have approved

a search conducted pursuant to a condition

imposed by a court or board of parole.

Nevertheless, a small minority of states still

disapprove of warrantless search conditions

imposed on probationers and parolees.3

Moreover, several jurisdictions have limited

the scope of a search conducted pursuant

to a court order.

Most appellate courts that have approved

of searches conducted in accordance with

a condition imposed by a parole board or

court have based their decisions on the legal

theory that said condition is “consensual.”

These courts have stated that by accepting

probation (or parole) in lieu of serving a

prison sentence, the offender has agreed to

a condition allowing a probation or parole

officer to conduct a search of his person,

residence, or automobile. One recent court

decision that based its holding on this legal

theory is People v. Hale.

4

In People v. Hale, the defendant was convicted of criminally negligent homicide after

having killed a woman in a boating accident

while the defendant was intoxicated. The

defendant entered a plea bargain agreement

and was placed on probation. One of the

conditions to which the defendant agreed

was that:

[Y]ou permit search of your vehicle

and place of abode where such place of

abode is legally under your control,

and seizure of any narcotic implements

and/or illegal drugs found, such search

to be conducted by a Probation

Officer or a Probation Officer and

his agent.

Ten months into the probationary period,

the defendant’s probation officer received

information that the defendant was dealing

drugs at his home. The probation officer,

accompanied by the defendant and by police

officers, entered the defendant’s house. In

the ensuing search, the authorities discovered rifles, shotguns, illicit drugs, and a

scale. The defendant was subsequently

indicted on drug and weapons charges.

The defendant argued on appeal of his conviction that absent a search warrant, exigent

circumstances, or a voluntary consent made

at the time of the search, a probationer

could be searched only if a court had issued

a search order authorized under New York

state law. The New York appellate court

noted that, unlike Griffin, the search in this

case was not conducted pursuant to a state

regulation. Nevertheless, the Court in Hale

stated that the court-imposed condition carried as great, if not greater, constitutional

weight, as a regulation. In Hale, the defendant had agreed to the condition in order

to avoid a prison sentence. Moreover, the

Court stated that this agreement was no

more coercive than any other agreement

made to avoid a prison sentence. Since the

defendant had consented to the condition,

he could not now complain when drugs and

weapons were seized by a probation officer

in enforcing this condition of probation.

Even though a court may approve a search

conducted pursuant to a court-imposed

condition, some jurisdictions have nevertheless limited a search to certain items, e.g.,

illicit substances and drug paraphernalia or

pornography and sexually oriented devices.

For example, some courts have held that a
114CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

search condition must be tailored to the

offense for which the offender was granted

probation.

5 The Hale decision is a good

example of a case in which the court limited

a search condition to a specific item, i.e.,

drugs. In addition, the Hale decision shows

that if, in the course of conducting a search

for a specific item, another type of contraband

is discovered, this other type of contraband

may be seized and used in a subsequent

criminal proceeding.

Moreover, some appellate courts have struck

down certain search conditions as being overbroad or vague. Even in the Ninth Circuit,

where a waiver condition is recognized as

valid, the terms of the condition must be

narrowly drawn. The court of appeals there

disapproved as overly broad a condition that

appeared to extend the benefits of a federal

probation condition to all “law enforcement

officers.”

6 This holding was also based on

the coerciveness of the circumstances that

gave rise to a consent waiver. The condition

that was approved provided: “A probationer

must submit to a search of her person or

property conducted in a reasonable manner

at a reasonable time by a probation officer.”

7

Such a condition, the court said, would meet

the reasonableness requirement of the fourth

amendment by properly balancing the relevant governmental and individual interests.

C. Warrantless Searches

Conducted Without a Condition

or Regulation

Courts across this country are almost unanimous in holding that a warrantless search of

a probationer or parolee must be based on

some express legal authorization. Thus the

general rule is that warrantless searches cannot be conducted absent an express condition, regulation, or statute that gives the

supervision officer the authority to conduct

such searches. Nevertheless there are certain

limited exceptions to this general rule.

Sometimes, the relevant condition is one

that authorizes unannounced visits by a probation/parole officer to the residence of an

offender. Such a condition may be useful

because once lawfully on the premises, the

officer may see (or detect through other

senses) information that activates some

exception to the warrant requirement of the

fourth amendment. Such a situation arose

in United States v. Bradley

.

8 There, a Virginia

parole officer received information sufficient

to support a warrant that the parolee had

a firearm in his possession. Some 6 hours

later, acting under a visitation condition, she

went to his residence and conducted a search,

locating a weapon secreted in a closet. This

evidence was used to convict the parolee in

a federal criminal trial. The Fourth Circuit

Court of Appeals reversed, holding that the

warrant requirement was a rigid one.

We therefore hold that unless an established

exception to the warrant requirement is

applicable, a parole officer must secure a

warrant prior to conducting a search of a

parolee’s place of residence even where, as a

condition of parole, the parolee has consented to periodic and unannounced visits by

the parole officer.

9

In a followup case, the Fourth Circuit

applied this rule to a probation revocation

proceeding.10 This accords with the weight

of authority that search and seizure law does

not apply differently in parole and probation

cases. Nevertheless if a probation or parole

officer has a legitimate right to be at a certain place (e.g., authorized to conduct a

home inspection pursuant to a condition of

supervision) and sees a contraband item in

plain or open sight, then the observance of

the contraband item does not constitute a

search, and the seizure of the item is an

exception to the fourth amendment’s warrant requirement.
115

CHAPTER

8

SUPERVISION

D. Problems With

Searches Resulting From

Police/Supervision Officer

Collaboration

One of the more significant developments in

probation and parole supervision in the last

decade has been the increasing collaborative

efforts between supervision and law enforcement officers. While these collaborative

arrangements have proven to be very beneficial to both the probation/parole and law

enforcement disciplines, such arrangements

also pose legal pitfalls. Moreover, because

these joint efforts between police and supervision officers are a recent trend, many of

the legal issues that pertain to these collaborative endeavors have yet to be examined by

the courts.

Since law enforcement agencies and parole

and probation departments serve different purposes in the criminal justice system and have

contrasting missions, the most serious liability issues involving police/supervision officer

collaboration arise when one agent or officer

assumes or performs the role of the other.

Although the purposes and missions between

probation/parole supervision and law enforcement activity are not incompatible, they are

not synonymous either. Thus, for example,

there is nothing improper with a peace officer accompanying a probation/parole officer

on a home inspection either to offer personal protection to the supervision officer or

even to question a probationer/parolee on

matters of mutual interest to the police

and the supervision officer.

However, a police officer cannot direct that

a supervision officer perform certain acts

solely at the request of or for the benefit of

the police officer without converting that

probation/parole officer into a law enforcement

agent. When this occurs, two liability concerns arise for the probation/parole officer.

First, once a probation/parole officer assumes

law enforcement responsibilities, then that

officer must act in accordance with the same

legal limitations that apply to law enforcement officers. Second, by performing law

enforcement duties, the probation/parole

officer may be deemed to have exceeded the

course and scope of his or her duties as a

supervision officer, and thus any negligent

performance of the officer’s duties that arose

while the officer was acting as a law enforcement agent may result in personal liability

for the supervision officer. Two of the issues

involved in police/probation officer collaboration are discussed below.

1. Police Searches Conducted With

Probation/Parole Officers

Generally, a law enforcement officer must

comply fully with the fourth amendment

before searching a parolee or probationer.

Probation/parole officers, on the other hand,

are not bound in full by the fourth amendment because they are generally authorized

to search without a warrant or probable

cause by the conditions of probation or

parole. Nevertheless a probation/parole officer may enlist the aid of law enforcement

personnel to expedite a search,11 subject to

the limitation that the primary purpose is

probation/parole-related and not a subterfuge for a more general law enforcement

goal. Under this situation, a police officer

is allowed to assist in the search of a probationer/parolee if the purpose of the police

officer accompanying the supervision officer

is to provide protection to the supervision

officer. Moreover, in the event that police

seek to induce a probation officer to exercise

his or her power to search, the probation

officer may accommodate the request if he

or she believes the search is necessary to the

proper functioning of the probation system.12

The case that best exemplifies this general

rule is United States v. Ooley.

13 In this case,

the defendant was convicted in a California

state court of second-degree burglary and

placed on probation. As a condition of the

defendant’s probation, he agreed to waive

his fourth amendment rights and to allow

searches to be conducted on his person,

place, and automobile. Less than 6 months
116CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

into the term of his probation, police officers arrested him in his automobile on suspicion of burglary. They also conducted a

warrantless search of his home, where they

found a loaded gun and some ammunition.

The defendant was indicted on the federal

charge of a felon in possession of a weapon.

He filed a motion to suppress the search of

his home on the grounds that the search was

not conducted in furtherance of enforcing

the conditions of his probation but, instead,

was conducted pursuant to an investigation

of an alleged crime. The trial court denied

the motion, and the defendant appealed his

conviction to the Ninth Circuit United

States Court of Appeals.

The Ninth Circuit observed that, with

respect to a probationer, the Court had long

recognized that the legality of a warrantless

search depends upon a showing that the

search was a true probation search and not

an investigative search. The Court further

stated that unlike an investigative search, a

probation search should advance the goals of

probation, the overriding aim of which “is

to give the probationer a chance to further

and to demonstrate his rehabilitation while

serving a part of his sentence outside the

prison walls.” The Court remanded the

defendant’s case to the trial court to conduct

a hearing in order to determine whether the

search in question was a probation search or

an investigative search.

2. Searches Conducted by Police Officers

Alone

Most courts hold that a police officer, acting

alone, cannot conduct a warrantless search

of a suspect simply because a warrantless

search has been imposed on the offender as

a condition of probation or parole. But a

minority of jurisdictions allow police officers

to conduct searches of probationers or

parolees without the presence of a supervision officer, provided there is a condition of

release requiring the defendant to “waive”

his fourth amendment rights. In the recent

case of in re Tyrell,

14 police officers searched a

juvenile congregating with suspected gang

members at a football game. The police discovered a bag of marijuana on the juvenile.

Unknown to the police, the juvenile was on

probation with a condition allowing the

search of his person.

The California Supreme Court held that

this condition was sufficient to authorize the

search of the juvenile by police. Even though

no probation officer was present when the

search was conducted and even though the

police were unaware that the juvenile was on

probation and unaware of the search condition, the Court held that the search was reasonable. The Court stated that “as a general

rule, probationers have a reduced expectation of privacy, thereby rendering certain

intrusions by governmental authorities ‘reasonable’ which otherwise would be invalid

under traditional constitutional concepts, at

least to the extent that such intrusions are

necessitated by legitimate governmental

demands.”15

The current law is uncertain concerning

whether a court or a probation/parole officer

can delegate supervisory authority to a

police officer and hence change the status of

a law enforcement officer into that of a probation/parole officer. While certain court

decisions have approved search conditions

that extend the authority to law enforcement officers to conduct warrantless searches

of probationers or parolees,16 most courts

have deemed that law enforcement officers,

when conducting these searches, are “assisting” supervision officers and hence are not

assuming the role of a supervision officer.

In differentiating between the notion of

assisting a supervision officer as opposed

to assuming the supervision officer’s role,

courts have focused on whether the supervision officer authorized or initiated the

search,17 whether the search was conducted

pursuant to a legitimate goal of probation or

parole,18 and whether the search was a pretext for conducting a criminal investigation

of the probationer or parolee.19 As a general

rule, there is less liability for supervision
117

CHAPTER

8

SUPERVISION

officers if the police officer is assisting the

supervision officer than if the supervision

officer is assisting the law enforcement officer.

E. State Standards of

Reasonableness for Conducting

a Search

Since the United States Supreme Court’s

decision in Griffin v. Wisconsin, the states

that allow searches of probationers and

parolees have adopted a reasonableness standard that is less than a probable cause standard.20 A general definition of “reasonable” is

that a warrantless search is legitimate whenever a probation/parole officer has reasonable cause to believe that the parolee or

probationer is violating, or is about to violate, a condition.21 Nevertheless the exact

words of the judicial test vary from state to

state, but the result is the same. For example, in People v. Anderson22 a warrantless

search was approved where the parole officer

had “reasonable grounds” to believe there

had been a violation. The language in People

v. Santos23 was “reasonable suspicion.” In

State v. Williams,

24 it was “sufficient information to arouse suspicion,” and in State v.

Sievers, it was “reasonable manner.”25

When courts apply this approach, they often

say that the totality of the circumstances

must be considered, including the complaining party’s status as a probationer or

parolee.26 This means that the amount of

information required before action can be

taken is less than in the case of a member

of the general public. Nevertheless courts in

almost every jurisdiction have held that a

mere hunch that a probationer or parolee

has violated the conditions of his release is

insufficient to justify a search of that individual.27 Even the California state courts,

which have allowed investigative searches of

probationers and parolees by law enforcement officers, have held that a search cannot

be arbitrary, capricious, or harassing.28

The foregoing categorization is, however,

artificial. It is more accurate to think of

search and seizure law as a line along which

various jurisdictions are arranged according to

the relative amount of triggering information

required by a reviewing court. To act properly

within a jurisdiction, the probation or parole

officer must consult local authorities.

■■■

II. PROBATION/

PAROLE OFFICERS

AND FIREARMS

Asignificant development in probation

and parole supervision in the last decade

has been the arming of probation/parole officers in some parts of the country. Although

the federal system and a few other states had

authorized probation/parole officers to carry

weapons before the 1990s, the number of

jurisdictions that have joined the ranks of

arming their officers has grown markedly in

the last 10 years. This, in turn, has increased

the liability concerns of officers who now not

only must be aware of all of the nuances of

probation and parole laws but must also be

aware of the legal consequences of the use

of deadly force.

The arming of probation/parole officers

results from several circumstances. First,

with overcrowding problems in the nation’s

prisons during the last decade and the pressure to divert more and more offenders who

had traditionally been sentenced to prison or

had previously served longer periods of confinement, probation and parole caseloads

now contain more “hardened” or serious

offenders than before. Second, the mission

of probation and parole departments in

many jurisdictions has changed from rehabilitation to a more balanced approach with

public protection. Finally, greater collaborative efforts between law enforcement agents

and probation/parole officers have underscored the need for armed self-protection.
118CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

Whether or not a probation/parole officer is

armed depends on several factors. First, in

order for a state probation or parole officer

to be armed, there must be state legal or

statutory authority allowing that officer to

carry a weapon. But even if state law authorizes the arming of officers, the local court,

board of parole, or supervision department

may elect not to arm its officers. Arming

officers or allowing officers to carry firearms

is discretionary with the supervisory authorities in most jurisdictions. Finally, even if a

jurisdiction allows its officers to carry a

weapon, state regulations or departmental

policies may still preclude a particular officer

from being armed for a number of reasons,

such as psychological reasons, because of

information found in a background check

of the officer, or for failure of the officer to

pass a weapons certification course. It is

worth noting that very few jurisdictions in

this country allow their juvenile probation

officers to be armed.

Departments that have chosen to arm their

officers have done so for one of two reasons:

protecting their officers and general law

enforcement. State laws differ on the justification for an officer being armed. For example, Texas allows its adult probation and

parole officers to be armed for self-defense

purposes only.29 The law in Pennsylvania and

New York, on the other hand, states that

probation and parole officers are law enforcement officers during the period they are on

duty and gives them broad powers to arrest

probationers and parolees observed violating

the conditions of their release.30 Whether an

officer is liable for an incident arising from

the discharge of a weapon may depend on

the extent of the authority given to the officer by state law to carry a weapon and on

whether the officer exceeded that authority.

There is hardly any court decision examining liability issues arising from the discharge

of a weapon by a probation/parole officer,

but there are numerous court cases on the

use of a weapon by a law enforcement officer. Because of the similarity in legal issues

that arise in use of weapons lawsuits involving law enforcement officers and that would

arise in cases involving probation/parole officers, one can draw analogous conclusions for

probation/parole cases by examining law

enforcement cases.

Although a party injured in an incident

involving the discharge of a weapon by a

probation/parole officer could file a lawsuit

under the various states’ tort claims acts,

the most common cause of action for the

improper use of a weapon is a claim for a

deprivation of a constitutional right protected by federal law, Section 1983 of 42 U.S.

Code. This provision was enacted by the

United States Congress to provide persons a

means of obtaining redress for the loss of a

constitutional right caused by a person acting under color of law. Nevertheless, a mere

assertion of negligent deprivation of a constitutional right is insufficient to prevail in

a Section 1983 lawsuit.31 There must be

a showing that the deprivation indicated

deliberate indifference or gross negligence

on the part of the government official.32

Supervisors and political subdivisions of a state

can be sued if the action of the supervisor or

political subdivision was a contributing cause

of the person’s deprivation of a constitutionally

protected right. This accounts for the reluctance by many departments and agencies to

allow their officers to carry firearms. For

example, the lack of sufficient training of

probation/parole officers in the use of

weapons may be grounds for a suit under

Section 1983.33 This failure to properly train

extends to the failure to provide continuous

training,34 failure to ensure that the officers

adequately understood the course material,35

and even failure to provide instruction on

first aid in case a person is injured as a result

of the discharge of the officer’s weapon.36

Probation and parole officers may be liable

if they use excessive force in attempting

to arrest or apprehend an offender. In

Tennessee v. Garner,

37 the Supreme Court

held that the use of excessive force (in this
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case a shooting) to arrest a suspect of a

crime constituted an unlawful seizure under

the fourth amendment to the United States

Constitution. The Court stated that a police

officer could not use a deadly weapon to

stop an unarmed nondangerous suspect

from fleeing unless said deadly force was

necessary to prevent the escape and the officer had probable cause to believe that the

suspect posed a significant threat of death

or serious physical injury to the officer or

others. In addition, the officer must give

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

considered if civil liability is to be obviated

or minimized:

■ Proper training on the use of firearms is

a must. Ideally, that training should be

similar to that given to police or other law

enforcement officers in the state.

■ Ideally, officers should be properly certified as law enforcement officers. This

includes participation in regular continuing education programs required of law

enforcement officers.

■ The department must set a clear policy

on officers’ use of deadly force. Such use

should be limited to cases when there

is probable cause to believe that deadly

force is needed for self-defense or for

the defense of other persons.

There is fear in some departments that the

agency itself might be sued if officers are

not allowed to carry firearms and are later

injured in the course of their work. This is

understandable, but as best we know no case

has been filed in court so far on this issue.

Even if filed, however, chances of success

may be remote because the officer will have

difficulty establishing that carrying a firearm

would have prevented the injury. There will

have to be deliberate indifference on the part

of the department before liability can likely

be imposed. When this takes place will be

decided on a case-by-case basis, but not allowing an officer to carry a firearm in itself should

not constitute deliberate indifference. It also

helps if the agency has a policy aimed at

minimizing the possibility of such incidents

taking place. For example, the department

can require that in risky situations, the officer should request the assistance or presence

of police officers and not undertake the job

alone, or that it be done only in the company of another probation or parole officer.

■■■

III. DUTY TO THE

OFFENDER NOT

TO DISCLOSE 

INFORMATION

Amajor legal liability concern of field

officers relates to confidentiality and

privacy issues. Despite the widespread anxiety this issue generates among officers, there

are actually only a few instances in which

the breach of confidentiality has been the

basis for a civil suit against an officer. This

does not imply that confidentiality issues are

not important for officers, or that officers

cannot incur liability for the improper disclosure of information regarding an offender.

Instead, it indicates that this has not been an

issue over which offenders in the past have

had a particular awareness and, therefore,

there have been few claims alleging a breach

of a confidential matter. Perhaps because of

the heightened concern officers have regarding confidentiality, officers traditionally have

taken a cautious approach when dealing

with information concerning an offender.

What makes disclosure of information about

a probationer/parolee less of a liability issue

is that, in many states, the fact that a person

is on probation or parole is a matter of public record and, therefore, there is no liability

for disclosure. Moreover, such disclosure
120CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

might be justified by the fact that it is protective of society. The only possible exception to this is juvenile cases if disclosure of a

juvenile being on probation or parole is prohibited by state or case law.

Although being on adult probation or parole

is a matter of public record in most states,

what may be disclosed beyond that is much

less certain and depends upon state law or

agency policy. This refers to information

concerning how long a person is on probation, for what offense a person is on probation, what conditions have been imposed,

and other issues. In most states, such information is not a matter of public record and

therefore may not be disclosed.

One writer, however, gives this opinion on

the issue of disclosure and liability under

state tort law:

It is doubtful that such acts as the disclosure of information to employers

proscribing certain employment would

be deemed tortious. Federal officers

can reveal items of information from

public records, such as records of prior

arrests or convictions, free of liability

from the tort of defamation. Regardless of the source of the information,

if it is accurate, no liability could arise

for defamation, since truth is a complete defense. As to the tort of invasion

of privacy, disclosure of items of public

record creates no liability. Also, release

of information to a large number of persons is an essential element of the tort of

invasion of privacy; that element would

be lacking in the release of information

to an individual employer. Finally, the

tort of interference with a contract or a

prospective contract can be justified if

the ultimate purpose of the disclosure

outweighs the harm to the plaintiff.

The impersonal disclosure of information to an employer to protect the public or a third party would appear to be

within the rule of justification.38

In Anderson v. Boyd,

39 the plaintiff parolee

brought suit against parole officers, claiming

the defendants had knowingly repeated false

statements regarding the plaintiff’s criminal

record to Idaho state officials and local

police authorities. The court ruled that dissemination of information about a parolee

to persons outside the parole board does

not relate to the parole officers’ duties in

deciding to grant, deny, or revoke parole.

Therefore, absolute immunity does not

extend to such conduct; at most, parole officers would be entitled to executive, good

faith immunity for their alleged conduct.

In addition to information gleaned from

public records and correctional files about

the offender, probation/parole officers frequently receive information directly from

the offender and the officer’s associates. If

the offender has a right to prevent the dissemination of information from such sources,

might he or she be able to recover damages

from the officer in a proper suit in the event

of disclosure? As a matter of general law,

apparently the answer is no. Again, case law

support for this conclusion is thin, but that

in itself is somewhat indicative of the weakness of the argument that must be made to

support liability. The question hinges on the

nature of the relationship between the probation/parole officer and the offender.

One of the closest examinations of the relationship was made in a 1976 Washington

criminal case.40 In that case, a parolee contended that the trial court should not hear

testimony from his parole officer concerning

statements he made voluntarily during a telephone conversation. (Since there was no custodial interrogation, the parolee could not

argue successfully that Miranda required suppression.) The defendant contended that the

relationship between parole officer and parolee

is a confidential one, that all communications

between the two were thereby privileged,

and that to hold otherwise would undermine

the rehabilitation process envisioned by the

parole system. The court disagreed:
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A parole officer’s primary responsibility

is to the court, secondly to the individual being supervised. To hold that each

communication between the parolee

and his parole officer is privileged

would close the lips of the supervising

personnel and allow the parolee to

confess serious crimes with impunity.41

It must be noted that, in criminal prosecutions, courts require a very high degree of

need for relevant testimony. They are reluctant, therefore, to expand the concept of

privilege beyond its traditional bounds—

lawyer-client, doctor-patient, clerical-penitent,

husband-wife. While the civil law context

is different, there is no reason to expect the

officer-probationer/parolee relationship to

be treated as confidential.

A. The Case of Fare v. Michael C.

Says There Is No Privileged

Communication Between

Probation Officer and Offender

In Fare v. Michael C.,

42 the request by a juvenile on probation, who was suspected of

murder, to see his probation officer—after

having been given the Miranda warnings

by the police—was not considered by the

United States Supreme Court as tantamount

to his asking for a lawyer. Evidence voluntarily given by the juvenile, even after he

expressed a desire to see his probation officer

instead of a lawyer, was held admissible in a

subsequent criminal trial. The Court also

addressed the issue of confidentiality of

information between a probation officer

and a juvenile probationer, saying:43

A probation officer is not in the same

posture with regard to either the accused

or the system of justice as is [a lawyer].

Often he is not trained in the law, and

so is not in a position to advise the

accused as to his legal rights. Neither

is he a trained advocate, skilled in the

representation of the interests of his

client before both police and courts.

He does not assume the power to act

on behalf of his client by virtue of this

status as advisor, nor are the communications of the accused to the probation

officer shielded by the lawyer-client privilege. . . . In most cases, the probation officer is duty bound to report wrongdoing by

the juvenile when it comes to his attention,

even if by communication from the juvenile himself. [Emphasis supplied.]

Although the above case involved a juvenile

probationer, there are strong reasons to

believe that the principles enunciated apply to

adult cases as well. Constitutionally, therefore,

probationers/parolees do not have a right

against disclosure of information given to

probation/parole officers; however, disclosure

may be prohibited by state law or agency regulation. This is especially true if the nature of

the disclosure involves the physical or mental

health status of the individual.

Some supervisory agencies have administrative policies concerning public record access

and disclosure. These rules may establish a

policy forbidding an officer from releasing

certain information regarding a probationer

or parolee, even though no statute or other

law prohibits an officer from doing so. An

agency policy restricting the disclosure of

certain information would supersede the

general principles discussed here. Hence, the

reader should determine whether there is an

applicable agency policy that would prohibit

an officer from releasing information maintained by the agency. In addition, certain

states have now established laws or administrative policies restricting the disclosure of

information pertaining to the victim of a

crime. A probation or parole officer should

thoroughly familiarize himself or herself

about laws or policies in his or her jurisdiction that preclude the release of information

pertaining to a victim.

B. Invasion of Privacy

An area of liability concern that is similar to

the disclosure of confidential information

involves the potential tortious invasion of
122CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

privacy. Many, if not most, states recognize

a cause of action for a breach of privacy.

Generally, the elements for a breach of 

privacy are (1) the publication of matters

concerning an individual’s private life, the

publication of which would be highly offensive to a reasonable person of ordinary sensibilities; and (2) the matter that is publicized

is not of legitimate public concern.44 While

disclosure of information that is a public

record or factual information regarding

an individual’s criminal conviction is not

actionable as an invasion of privacy, the disclosure of certain highly personal information about an offender may be. 

Thus, the improper disclosure of information obtained while questioning the offender

being supervised may give rise to a suit for

the invasion of privacy. For example, even

though a probationer or parolee may be

supervised for a sex offense, it still may be

an invasion of the individual’s privacy if a

probation or parole officer were to disclose

highly sensitive information about the

offender’s sex life. If this information about

the individual’s sex life were not criminal

in and of itself, but such that an ordinary

person would find highly embarrassing if it

were disclosed about that individual, then

such disclosure may constitute an invasion

of privacy. Moreover, if the agency responsible for supervising the offender has a policy

against disclosing such information, it may

be presumed that such information is highly

sensitive and therefore be presumed that the

publication of such would constitute a breach

of privacy.

Finally, the improper questioning of a probationer or parolee during supervision may

give rise to a suit for unreasonable intrusion

upon the privacy of the individual. While

officers have a great deal of discretion and

are given considerable leeway in questioning

an offender who is under supervision, the

questioning must have a reasonable bearing

on rehabilitation of the offender or enforcement of the conditions of release. For example, if an officer were to extensively question

a probationer or parolee convicted of theft

about the offender’s sexual life or practices,

said questioning could be deemed improper,

especially if there were no indication that

the offender’s sexual behavior was interfering

with efforts to rehabilitate the individual

or had contributed to commission of the

offense for which he or she was placed on

probation or granted parole. Thus even

though a probationer or parolee has been

convicted of a crime, the individual still has

an interest in preventing unreasonable intrusion into his or her private life.

C. Libel and Slander

Another area of concern touching upon privacy issues involves libel and slander. Libel is

a written or printed defamation that tends

to injure the reputation of a living person

and thus expose him or her to public hatred,

contempt, ridicule, or financial injury, or

impeach his or her honesty, integrity, virtue,

or reputation. Slander is a defamatory statement orally communicated or published to

a third person without legal excuse. Even

though probationers and parolees have been

convicted of a criminal offense and even if

their reputation is not held in high esteem

in the community, libel and slander laws still

protect them. 

Thus if an officer were to make a false factual

statement about an probationer or parolee,

such as a false accusation that an offender

convicted of embezzlement is a drug dealer

or a person convicted of driving while intoxicated is a child molester, the offender could

bring an action against the officer for libel

or slander. Moreover, since making false accusations regarding a probationer or parolee

is clearly not within the course and scope of

an officer’s job responsibilities, it if doubtful

whether an officer could assert the defense

of official immunity in response to a suit for

libel or slander. Hence any statement that

an officer makes about an offender must be

factually based and verifiable and the publication of which must be consistent with

department policies and state law.
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D. No Tortious Interference

With a Contract If Disclosure

Is Justified

Officers frequently face situations in which

they see the need to inform a person employing a probationer or parolee about the individual’s criminal record (see section IV,

Liability for Failure to Disclose Offender

Background Information to Third Parties,

in this chapter). A potential liability concern

for disclosing information to an employer

regarding an offender under supervision is

the tortious interference with a contractual

relationship between the employer and his

or her employee. The elements for establishing such causes of action are (1) the existence of a contract subject to interference;

(2) a willful and intentional act of interference; (3) proximate cause of damages by

reason of the interference; and (4) the

actual occurrence of loss or damages.45

Ordinarily there is no tortious interference

with a contract if there is a legal justification for informing the employer about the

employee. In probation and parole supervision, legal justification would likely exist if

the disclosure of information concerning the

offender would protect the interests of the

employer or further the safety of the public.

Thus if a probation or parole officer notifies

a hospital that its employee, working in a

dispensary, was convicted of a drug offense

or notifies a bank that one of its tellers had

been convicted of embezzlement, this would

be justified on the grounds that said disclosure protected the interests of the employer

and the public. Liability might issue, however, if disclosure is prohibited by state law or

agency policy, as is the case in juvenile probation or parole supervision. 

Nevertheless, an officer should inform

an employer only about one of his or her

employees who is being supervised in strict

accordance with guidelines established by or

under the direction of the court, board of

parole, or supervisory agency. Moreover,

an officer should under no circumstances

recommend to the employer that the

employee be terminated. The officer should

provide only factual information to the

employer for the purpose of making the

employer aware that he or she may need

to take certain precautions regarding the

employee. The precautions that are taken

should be left to the discretion of the

employer.

E. Federal Rules of

Confidentiality

Every state has laws regarding the disclosure

of confidential information. These laws generally protect information concerning an

individual’s physical or mental health status.

In addition, states may also have laws protecting other information deemed sensitive

in nature. These state laws may or may not

pertain to probationers or parolees in various jurisdictions. Since this manual discusses only probation and parole matters that

have general applicability to the nation as

a whole, it is advisable for a probation or

parole officer to seek legal advice concerning

whether local laws may provide additional

protections for the disclosure of information

pertaining to offenders.

Federal law, under certain circumstances,

creates a right of confidentiality throughout

the country regarding information about

alcohol or substance abuse treatment. This

law has stringent requirements for allowing

the disclosure of alcohol and substance

abuse information and has severe penalties

for the improper disclosure of this type of

information. This law also applies to offenders in the criminal justice system. Thus it is

important for probation and parole officers

to understand federal confidentiality rules. 

Volume 42 United States Code Section

290dd-2 provides that if a treatment

provider falls within the ambit of federal

regulations, then the confidentiality of the

identity of any patient seeking drug and

alcohol treatment must be protected.46 In

addition, this law provides that any person
124CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

who receives information regarding the identity of a patient being treated for drug or

alcohol abuse in a federally regulated facility

cannot pass it on without proper authorization. “Patients” include probationers or

parolees being treated for substance abuse

problems by a treatment provider subject

to federal regulations. Thus a probation

or parole officer may be precluded from

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 treatment facility, even to a court or law enforcement agency.

This federal law allows only the disclosure

of information identifying a person as being

treated for a substance abuse problem under

certain narrow exceptions. One is if the person being treated signs an informed consent

allowing the disclosure of treatment information to certain parties. The other is if the

offender is being investigated for the commission of another crime and the disclosure is

required pursuant to a court order. However,

in order to procure a court order authorizing

the release of this type of information, there

must first be a court hearing. A subpoena

signed by a judge compelling the disclosure

of this information is not sufficient. 

At the court hearing, the court must find that

“good cause” exists for disclosing this information. In order to find “good cause,” the court

must consider the seriousness of the alleged

offense and balance the necessity and public

interest in disclosing the information with the

right of the patient to keep this information

confidential. If a court deems the information

disclosable, then an order will be issued compelling the individual having information

regarding the identity of the person being

treated for a substance abuse problem to

reveal the information to proper authorities.

Not all substance abuse treatment providers

come under this federal confidentiality law;

only those treatment providers subject to

federal regulations do. Generally, treatment

providers that receive federal funding

either directly or indirectly, such as through

Medicare payments, are subject to federal

regulations. However, because of the seriousness of a breach of this federal law, a probation or parole officer who refers an offender

to substance abuse treatment should inquire

of that treatment provider concerning

whether it is subject to federal regulations. 

■■■

IV. LIABILITY

FOR FAILURE TO 

DISCLOSE OFFENDER

BACKGROUND

INFORMATION TO

THIRD PARTIES 

A. The “Public Duty Doctrine”

Generally Precludes Liability

The term “third parties” refers to the general public that may be harmed by what an

offender does. For example, may a probation/parole officer be held liable for what a

person under supervision does? The answer

is no, but with some exceptions.

One purpose of probation or parole is public protection; in fact, some agency manuals

explicitly say so. The public, therefore, has

reason to think that if an injury is caused by

a probationer or parolee, the probation or

parole officer and department failed in its

job to protect the public. The “public duty

doctrine” protects officers from liability

whenever a crime is committed against the

public by an offender. This doctrine holds

that government functions, such as protecting the public, are owed to the public in

general, but not to specific individuals in

particular. Example: A parole officer may

have an obligation to protect the community in general, but not a member of the

community in particular. Therefore, if a
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person is harmed by a parolee, the parole

officer is not liable. 

While this doctrine generally insulates officers from liability, there are exceptions to it,

the most significant being “special relationship,” discussed below. Probation/parole

officers may be liable in a narrow set of circumstances when a third person is harmed

by an offender about whom there was no

disclosure of background information. The

leading cases from the probation and parole

settings are discussed separately.

B. There Might Be Liability If a

“Special Relationship” Exists

Every person walking the streets faces some

risk of harm at the hands of a parolee or

probationer. But it is not—and could not—

be the rule that in every case of actual injury,

the supervising government agency or probation or parole officer will be liable to the

party injured. The cases in this section point

to the factor that is most likely to lead to

actual liability. The key is the concept of

“special relationship.” Unfortunately, this

concept is the type into which courts tend

to pour meaning on a case-by-case basis. 

Based on a study of relevant cases, the

Federal Probation Service’s legal advisor has

concluded that the central requirement necessary to give rise to a “special relationship”

is a reasonably foreseeable risk of harm to a

particular person or narrow class. This element is explained by one source as follows.

1. Reasonably Foreseeable Risk

The duty to warn arises when, based on the

probationer’s (parolee’s) criminal background

and past conduct, the officer can “reasonably

foresee” a prospect of harm to a specific third

party. “Reasonably foresee” means that the

circumstances of the relationship between

the probationer (parolee) and the third party,

e.g., employer and employee, suggest that

the probationer (parolee) may engage in

a criminal or antisocial manner similar, or

related to, his past conduct. Examples include

(1) a rapist in an apartment complex or television repair job; (2) an embezzler in a bank

or financial company; (3) a drug user in a

pharmacy or hospital; BUT NOT (4) a family assaultist in an apartment complex (this

would be related to a prospect of harm to

members of his family, assuming he has not

demonstrated a general violent disposition);

or (5) a financial scheme criminal who starts

a “home security” business (the risk would

be to burglarize homes or sell plans, which is

not similar or related to his criminal conviction; also, the clients would be general, not

specific possible victims).47

For purposes of minimizing possible liability

based on foreseeability, a policy probation

and parole departments might want to consider is that used by the federal government

in determining whether to notify an employer.

Its Guide to Judiciary Policies and Procedures

(1983)48 provides the following:

Decision Regarding Disclosure

(1) If the probation officer determines

that no reasonably foreseeable risk exists,

then no warning should be given.

(2) If the probation officer determines

that a reasonably foreseeable risk exists,

he or she shall decide, based upon the

seriousness of the risk created and the

possible jeopardy to the probationer’s

employment or other aspects of his rehabilitation, whether to: (a) give no warning,

but increase the probationer’s supervision

sufficiently to minimize the risk; (b) give

no warning, but preclude the probationer

from the employment; or (c) give a confidential warning to party on notice of the

risk posed. When appropriate, the probationer may be permitted to make the disclosure with the understanding that the

probation officer will verify the disclosure.

This policy protects against possible liability

because it gives the officer discretion to determine foreseeability and what remedial measures are to be taken if foreseeability exists.
126

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

Nevertheless, disclosure is a problem in juvenile cases where state law or department policy may prohibit disclosure of records. In

these cases, an officer who wants to disclose

a juvenile record to a prospective employer

(to protect against a possible lawsuit by the

employer for nondisclosure) should obtain a

waiver in writing, if such is allowed by law

or agency policy, to disclose such record to

the employer.

Another instance when liability might ensue

in probation/parole supervision is if there

is foreseeability and an identifiable victim.

Example: A parolee tells a parole officer during an interview that she is losing control

of herself and will likely kill her husband,

whom she blames for all her problems. If

that threat is credible (foreseeability), then

the officer is obliged to do something to prevent it from happening. In fact, this contingency should be covered by agency policy.

Some agencies provide that in instances

where there is foreseeability and an identifiable victim, the police must be informed

immediately, or the offender must be placed

under temporary custody or surveillance.

Courts will likely conclude that the presence

of foreseeability and an identifiable victim

creates a “special relationship” between the

officer and the public that can lead to liability

if no action is taken.

2. Reliance

Another element that the above liability

cases have in common, aside from foreseeability, in some cases, is reliance, i.e., that the

probation/parole officer undertook specific

actions that contributed to the harm suffered by the victim. For example, in Johnson

v. State,

49 California officials prevailed upon

the plaintiff to accept the parolee as a foster

child; in Georgen v. State,

50 the officers persuaded the plaintiff to hire the parolee; and

in Rieser v. District of Columbia,

51 District of

Columbia officials found the parolee the job

and permitted him to remain in a position

to prey on women even as evidence mounted

that he was a rapist. In all these cases, the

injured parties had reasons to believe that

the offenders were competent to do the

work and not prone to commit violent acts. 

This principle of reliance was central to

the Myers case,52 discussed below, where the

California Court of Appeals decided that

the officers were not liable for failing to

warn an employer that the probationer was

a convicted embezzler. This was because the

probation department did not place the probationer with the employer or direct him

in his employment activates, nor did the

department have any other special relationship with the employer; hence, there was

no reliance.

While the above cases deal with failure to

disclose, the act of disclosure may lead to

a probationer/parolee not getting the job;

hence, the probationer/parolee may sue.

Chances of liability in these cases are slight

because the disclosure may be justified under

the concept of “protection of society.” A legally sound policy for the department to adopt,

however, is one that makes disclosure or

nondisclosure optional in those cases where

a probationer/parolee obtains a job on his

own and without the help of the officer or

department. This protects the officer either

way in that if he or she discloses the record,

the policy protects him or her; conversely,

if he or she does not disclose, there is no

liability because such disclosure is optional.

There are departments that require disclosure by the officer to the employer of the

employee’s record, even if the employee

obtained employment on his or her own.

This policy carries added risks for the officer because failure to disclose would then

amount to negligence of duty or a violation

of policy. The better policy is to make disclosure or nondisclosure optional, as recommended above.

As stated above, however, courts have not set

any definitive standard as to when special

relationship exists, instead determining liability almost on a case-by-case basis. This
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writer theorizes that courts, particularly in

jury trials, will compensate injured plaintiffs in cases where the facts look bad for

the defendants and then justify the damage

award based on special relationship. The

rationale seems to be that the plaintiff has

suffered enough because of wrongful behavior by the probation and parole officer and,

therefore, compensation must be given for

an innocent victim’s injury. Given this, it

is difficult to say specifically when special

relationship exists.

C. Cases Involving Parole

Officers

In Johnson v. State,

53 a case decided by the

California Supreme Court, a parolee was

placed with a foster parent, the plaintiff.

Shortly thereafter, the parolee assaulted the

plaintiff, who then brought suit alleging

that the parole officer had negligently failed

to warn her of the youth’s homicidal tendencies and background of violence and cruelty.

The state argued that this was a discretionary

act by the parole officer and the officer was

entitled to immunity. The court found that

the consideration involved in deciding

whether to disclose background information

was at the lowest to no immunity. The state

also argued that it owed no duty of care to

the plaintiff. 

The court rejected this and held the state

liable, stating:54

As the party placing the youth with

Mrs. Johnson, the state’s relationship

to the plaintiff was such that its duty

extended to warning of latent, dangerous qualities suggested by the parolee’s

history or character. . . . Accordingly,

the state owed a duty to inform Mrs.

Johnson of any matter that its agents

knew or should have known that might

endanger the Johnson family. At a minimum, these facts certainly would have

included homicidal tendencies and a

background of violence and cruelty,

as well as the youth’s criminal record.

The court concluded that if a state parole

officer failed to consciously consider the risk

to the plaintiff in accepting a 16-year-old

parolee in her home and consequently failed

to warn the plaintiff of a foreseeable, latent

danger in accepting him, and that failure led

to the plaintiff’s injury, the state would be

liable for such injuries.

In the similar case of Georgen v. State,

55 a state

court found liability against the New York

Division of Parole for failure to disclose the

violent background of a parolee who was

recommended for employment to the plaintiff, whom he later assaulted. The court concluded that the plaintiff’s reliance on the

recommendation and her complete ignorance

of the danger posed by the parolee were sufficient grounds to find a duty to disclose.

Another case, Rieser v. District of Columbia,

56

is perhaps the best known case involving a

parole officer where liability was imposed.

The facts of the case and the decision are

complex but are briefly summarized here.

In Rieser, the plaintiff’s daughter, Rebecca

Rieser, was raped and murdered by a

parolee, Thomas W. Whalen. He had

been assisted by the District of Columbia

Department of Corrections in finding

employment at the apartment complex

where the victim lived. The parolee was a

suspect in two rape-murder cases at the time

of parole and, during his employment in the

apartment complex, became a suspect in a

third murder of a young girl. Parole was not

revoked, but the parole board did advise the

parole officer to supervise the parolee closely.

No warning was given to the employer by

the parole officer of the potential risk posed

by the parolee’s presence.

The employer was later warned by the police

of the parolee’s record and his status as a suspect in the three murders, but the employer

did not do anything. Shortly thereafter, the

parolee entered the victim’s room and raped

and strangled her. The United States District

Court for the District of Columbia entered
128CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

judgment on the jury’s verdict awarding

damages in the amount of $201,633 against

the District of Columbia. The decision

was appealed. The United States Court

of Appeals for the District of Columbia

affirmed the award, stating that the parole

officer had a duty to reveal the parolee’s

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

unreasonable risk of harm to the women

tenants. 

The court stated that an actionable duty

is generally owed to reasonably foreseeable

plaintiffs subjected to an unreasonable risk

of harm by the actor’s (in this case the parole

officer’s) negligent conduct:

Abron’s position as a parole officer

vested in him a general duty to reveal

to a potential employer Whalen’s full

prior history of violent sex-related

crimes against women, and to ensure

that adequate controls were placed on

his work. Placement of Whalen at

McLean Gardens put him in close

proximity to the women tenants,

with the opportunity to observe their

habits, and gave him potential access

to the keys to their apartments and

dormitory rooms. . . . The jury could

conclude that a breach of Abron’s general duty would present a specific and

unreasonable risk of harm to the

women tenants of McLean Gardens

therefore giving rise to a special duty

toward them.57

D. Cases Involving Probation

Officers

In Meyers v. Los Angeles County Probation

Department,

58 the California Court of Appeals

decided that the county probation department

and its employees were not liable for failing

to warn an employer that a probationer was

a convicted embezzler, thus enabling the

probationer to embezzle funds from the

employer. In this case, the probation department did not place the probationer with the

employer or direct him in his employment

activities and had no other special relationship with the employer. It was irrelevant that

the probationer was to devote some of his

earnings to court-ordered restitution.

■■■

V. OTHER 

SUPERVISION

ERRORS Failure to warn where there is some duty

to do so is not the only circumstance that

could give rise to liability to third parties.

Deficiencies in the whole range of a field

officer’s responsibilities are replete with possibilities. An example is Semler v. Psychiatric

Institute

,

59 decided by the Fourth Circuit

Court of Appeals in 1976, which resulted

in liability.

Semler needs full discussion in view of its

convoluted facts. The case was a negligence

action under Virginia law. It was brought

by Helen Semler to recover damages for

the death of her daughter, who was killed

by John Gilreath, a Virginia probationer.

Gilreath had been prosecuted for abducting

a young girl in 1971. Pending his trial,

Gilreath entered the Psychiatric Institute of

Washington, D.C., for treatment. The doctor said that he thought Gilreath could benefit from continued treatment and that he

did not consider him to be a danger to himself or others as long as he was in a supervised, structured environment such as was

furnished at the Psychiatric Institute. In

August 1972, Gilreath pleaded guilty. His

20-year sentence was suspended, conditioned on Gilreath’s continued treatment

and confinement at the Institute.

A few months later, on the doctor’s recommendation and the probation officer’s

request, the state judge allowed Gilreath
129

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SUPERVISION

to visit his family for Thanksgiving and

Christmas. Subsequently, again on the

recommendation of the doctor, the judge

allowed additional passes, and early in 1973

he authorized the probation officer to grant

weekend passes at his discretion. In May

1973, the doctor recommended that Gilreath become a day care patient so that he

could go to the hospital each morning and

leave each evening. The probation officer

transmitted this recommendation to the

judge, who approved it.

In July 1973, the probation officer gave

Gilreath a 3-day pass to investigate the possibility of moving to Ohio. The probation

officer later gave Gilreath a 14-day pass so

he could return to Ohio to prepare for a

transfer of probation to that state. The

officer approved each of these trips after

discussing them with the doctor. Neither

pass was submitted to the state judge for

approval. On August 29, 1973, the doctor,

assuming Gilreath would be accepted for

probation in Ohio, wrote the probation

officer that Gilreath had been discharged

from the Institute.

The Ohio probation authorities, however,

rejected Gilreath’s application for transfer.

Gilreath telephoned this news to his probation officer, who instructed him to return to

Virginia. On September 19, 1973, Gilreath

visited his doctor, who told him he should

have additional therapy. The doctor did not

restore Gilreath to day care status, enrolling

him instead in a therapy group that met 2

nights a week. As an outpatient, Gilreath

first lived at home and later alone, working

as a bricklayer’s helper. Gilreath told the

probation officer about this arrangement,

but the officer did not report it to the judge.

In late September, the officer was promoted

and a new probation officer was assigned to

Gilreath on October 1. Gilreath killed the

plaintiff’s daughter on October 29, 1973.

In allowing the plaintiff’s claim, the

appeals court stressed that the requirement

of confinement until released by the criminal court was to protect the public, particularly young girls, from a foreseeable risk of

attack. The special relationship created by

the probation order imposed a duty on the

government and the probation officer to

protect the public from the reasonably foreseeable risk of harm at Gilreath’s hands that

the state judge had already recognized. The

plaintiff was awarded $25,000 in damages,

with the probation officer liable for one-half.

The facts in the Semler case are rather

unique and, because of that, its applicability

to other probation cases is doubtful. An old

adage states that “hard facts make bad law.”

Nonetheless, it appears crucial in Semler that

the probation officer in effect changed the

status of the probationer from that of a

day care patient to an outpatient without

authorization from the judge. The probation

officer gave Gilreath more liberty than the

judicial order allowed. The result in the case

would most probably have been different

had the actions of the probation officer and

the doctor been in accord with a judicial

order, even if the young girl died. The judge

himself could not possibly be liable because

of the absolute immunity defense. Carrying

out the orders of the court is a valid defense

in liability cases, unless those orders are

patently illegal or unconstitutional.

Special note should be taken of the way in

which Semler differs from the cases in the

preceding section. Unlike Johnson, Georgen,

and Rieser, the plaintiff in Semler did not

allege that a risk of harm to her daughter

was foreseeable. The deceased was simply

a member of the general public. While the

Semler court used the term “special relationship,” it was used in an entirely different

way than in the other cases. The potential

consequences of the Semler precedent are

significantly more worrisome as a result.

It should also be noted that the kind of

conduct that might have defeated liability

in Semler was quite different from the
130CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

companion cases. The state court in Semler

knew all of the facts concerning Gilreath’s

background. What was not communicated

was his present treatment status, information

the court might have used to keep the probationer in check. In Meyers and the other

cases, it was the party injured who did not

receive information.

Finally, in Semler there was a unique breach

of orders factor. When the physician and

probation officer ceased to involve the judge

in making decisions about Gilreath, they

arrogated to themselves power that was not

theirs to exercise. They could not do this

without also accepting the consequences of

their actions.

■■■

VI. DO OFFENDERS

HAVE AN ENFORCEABLE RIGHT

TO TREATMENT 

PROGRAMS? Courts have generally viewed the granting of probation or parole as a privilege

and not a right. For example, in Flores v.

State

,

60 the Texas Court of Criminal Appeals

stated that “there is no fundamental right to

receive probation; it is within the discretion

of the trial court to determine whether an

individual defendant is entitled to probation.” Nevertheless, once granted probation

or parole, an offender may be entitled to

participate in certain programs or services

that are available to similar probationers and

parolees and the denial of which may result

in a revocation proceeding.

There are very few reported cases that have

examined this issue. However, in People v.

Beckler

,

61 an appellate court focused on the

plight of a defendant who was rejected by

the treatment program to which the trial

court had assigned him. The appellate court

ruled that the defendant had a statutorily

created interest in remaining under supervision. Consequent due process required

notice, a hearing, right to confront and

cross-examine adverse witnesses, and disclosure of evidence against the defendant used

by the agency in refusing him further treatment. In Beckler, the appellate court held

that procedures should be utilized to ensure

that the agency ruling had not arbitrarily

disregarded the defendant’s interest in supervision. However, Beckler merely suggests

supervision may not be denied without due

process where statutes so provide. While the

case presently stands alone, its inherent logic

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

supervision.

■■■

VII. REPORTING 

VIOLATIONS The enforcement of the conditions

imposed on a released offender is

another issue of concern for field officers.

Generally, an officer has a duty to report violations to the court or parole board. He or she

has the duty to maintain close contact with

and supervision of the probationer/parolee

in the interests of rehabilitation and protection of the public.62 Nevertheless, research

has found very few cases in which liability

arose from an officer’s failure to report a violation and a subsequent crime or tort committed by a client. (See section X, Recent

Judicial Decisions Concerning Liability of

Probation and Parole Officers for Supervision, in this chapter). However, see the discussion of Semler v. Psychiatric Institute in

this chapter for a case in which liability

attached when a change in treatment status

was not communicated.
131

CHAPTER

8

SUPERVISION

For a discussion of violations as an aspect of

revocation, see Chapter 9, Revocation.

■■■

VIII. RESTITUTION

COLLECTION 

Aprobation officer generally cannot

assess the amount of restitution. If an

amount is not specified in the order of probation, none may be collected.63 The court

must provide the probationer with a specific amount to be paid as restitution. It is

improper to delegate that authority to the

probation supervisor.64 The basic premise

here is that the imposition of restitution,

as with any other part of a sentence, is by

statutory authority granted to the court and,

therefore, the court must determine the

amount.65 The imposition of probation conditions is the duty of the court and cannot

be delegated. Again, the only exception is if

otherwise specifically provided for by law.66

Once restitution has been ordered, it becomes

the responsibility of the probation/parole

officer or the department, depending upon

organizational structure, to handle and disburse funds received from the offender in a

proper manner. The order of the court (or

parole board) will include the party to whom

restitution is due, as well as the amount.

While in some cases the order may state

something less than a specific name, such

as a company, it is the duty of the officer

to pay out the funds to the proper party.

No personal responsibility accrues unless the

officer is given the duty of disbursing the

funds. In most cases, a separate office is maintained to handle payments by the offender

and disbursements, in which case the department, not the individual officer, is responsible. However if the officer is responsible, he

may be held liable for improper disbursement. No funds may be disbursed to anyone

other than the party named in the order of

the court (or parole board). Thus, an officer

was held liable for having paid restitution

money to a relative of a court-ordered recipient.67 In this situation, restitution was to be

paid through the probation office, but the

supervising officer ordered the office to pay

funds to the recipient’s sister with whom the

recipient was living. The officer was found

by the court to be exercising action outside

the duties of his office.

If restitution is being paid directly by the

offender, the officer may be responsible for

assuring payment, but only insofar as his

supervision duties allow him or her to know

the facts. Therefore, if the officer is not

aware of the failure of the offender to make

payments after exercising proper diligence,

he or she will not be liable. If he or she is

aware, there is a duty to report the matter to

the court (or parole board) as a violation of

conditions, at which point there will be no

liability on the part of the officer.68

While the imposition of a fine or restitution by the court as a condition of release is

obviously constitutional, the U.S. Supreme

Court has held in Bearden v. Georgia 69 that a

judge cannot properly revoke a defendant’s

probation for failure to pay a fine and make

restitution—in the absence of evidence and

finding that the probationer was somehow

responsible for the failure, or that alternative

forms of punishment were inadequate to meet

the state’s interest in punishment and deterrence. Simply stated, if a probationer/parolee

cannot pay a fine or restitution because he

is indigent, his probation/parole cannot be

revoked unless alternative forms of punishment are inadequate. On the other hand,

if the probationer/parolee has the financial

capacity to pay, but refuses to pay, revocation is valid.
132

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

IX. SHOULD THE

PROBATION 

OFFICER GIVE THE 

PROBATIONER

MIRANDAWARNINGS

WHEN ASKING 

QUESTIONS 

CONCERNING A

CRIMINAL OFFENSE?

The case of Minnesota v. Murphy, decided

by the U.S. Supreme Court in 1984

and discussed more extensively in Chapter

9, Revocation, answers most of the concerns

on this issue. The effect of the Murphy decision may be summarized as shown in table

8–1.

The crucial question then is: When is a probationer in the custody of a probation officer? This was not answered satisfactorily in

Murphy. All the Court said was: “It is clear

that respondent was not ‘in custody’ for purposes of receiving Miranda protection since

there was no formal arrest or restraint on

freedom of movement of the degree associated with formal arrest.” It is, therefore, clear

that a probationer who is under arrest is in

custody, but what about other instances?

From a study of court cases, the rule appears

to be: If after the interrogation, the officer

intends to let the probationer leave, then the

probationer is not in custody. Conversely,

if the officer during the interrogation had

no intentions of allowing the probationer to

leave after the interrogation (either because

of prior information of the probationer’s

activities or because of answers during the

interrogation that convince the officer that

the probationer should be placed under custody), then the probationer is under custody

and, therefore, the rules as summarized

above apply.

What about cases where initially an officer

does not intend to place the probationer in

custody, but as the interview develops the

officer feels that the probationer, because of

an incriminating response, should now be

placed in custody? In these cases, the probationer is considered to be in custody at that

point in time when the officer decided that

the probationer should not be allowed to

leave. At that stage, the Miranda warnings

must be given if answers obtained are to

be used during a subsequent criminal trial.

Obviously, that determination is subjective.

There is a distinction therefore between

supervisory interrogation (where the

Miranda warnings need not be given) and

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 

is to be admissible?

If Used in Revocation If Used in Trial

Not in custody No No, unless probationer 

asserts rights

In custody Depends on state law or Yes 

court decisions 
133

CHAPTER

8

SUPERVISION

custodial interrogation (where the Miranda

warnings must be given if the evidence is to

be used in a criminal trial, or in a revocation

proceeding, if state law so provides). The

Murphy case involved a probationer, but

there are reasons to believe that the principles should apply to parole cases as well.

■■■

X. RECENT JUDICIAL

DECISIONS CONCERNING LIABILITY

OF PROBATION AND

PAROLE OFFICERS

FOR SUPERVISION

Over the last decade, several court decisions have examined personal liability

claims involving probation/parole officers.

These court decisions have generally focused

on two areas: negligent supervision of offenders and assertions of defense of immunity to

suits against individual officers. Moreover,

with regard to negligent supervision cases,

the germane issues that the courts have been

asked to determine is whether the officer

owed a duty to an identifiable victim or victims and whether the actions of the officer

created a reasonably foreseeable harm. With

regard to claims of immunity, the germane

issue has been whether the officer acted in

good faith.

A. Negligent Supervision

Suits involving claims of negligent supervision are not novel to the 1990s. In 1986,

the Alaska Supreme Court, in Division of

Corrections v. Neakok,

70 was asked to decide

whether the Alaska Department of Health

and Social Services, Division of Corrections,

and Alaska Parole Board were negligent in

placing a parolee in a small village that did

not have police protection or the presence of

a parole officer. In this case, the parolee shot

and killed his teenage stepdaughter and her

boyfriend and raped, strangled, and beat to

death another woman. The parolee had a

history of alcohol abuse and violence and

was highly intoxicated at the time he committed these offenses.

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

while on parole; (3) allowing the parolee to

return to a small, isolated community without police officers or alcohol counseling; and

(4) failing to warn his victims of his dangerous propensities. The court noted that the

Alaska state agency was aware of the defendant’s alcoholism and violent behavior.

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

identifiable victim. Instead, the court stated

that victims in this case all belonged to a

small, isolated community and that the residents of this village constituted a “group of

victims” that were not unidentifiable members of the general public.

Although negligent supervision cases are not

new, the last decade has seen an increase in

suits filed against individual probation and

parole officers. Taggart v. State and Sandau v.

State 71 examined the issue of the “negligent

supervision” of a parolee and the responsibility that a parole officer has toward a third

party injured by a parolee. In both these

cases, the parole board for the State of

Washington and several parole officers were

sued by victims of crimes committed by

two persons who were being supervised on

parole. In the Taggart case, the parolee had

a history of violent sexual behavior and

substance abuse. He had been incarcerated

numerous times in both juvenile and adult

facilities. Despite his criminal history and

behavioral problems, a parole agent recommended that he be released from prison and

once again placed on parole. The parole

board accepted the recommendation of the

parole agent and approved parole for the
134

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

individual with special conditions that he

complete a substance abuse program and

submit to urinalysis testing. While on parole,

the individual failed to follow the conditions

imposed by the parole board and subsequently assaulted another victim, causing

her severe injuries.

In the Sandau case, the parolee also had a

history of committing violent crimes and

also a history of substance abuse. While on

parole, the individual violated the conditions

of release and his parole officer decided to

suspend his parole. Nevertheless, despite violating the conditions of his parole, no parole

warrant was issued for his arrest. Instead,

the parolee left the State of Washington and

moved to Montana. Although the parole

agency was aware of the absconder status of

the parolee, there was a delay in issuing an

arrest warrant. While in Montana, the

parolee raped a 9-year-old girl.

The victims in these two cases filed suit

against both the parole board in the State of

Washington and individual parole officers.

The plaintiffs alleged that certain parole officers were negligent in recommending to the

parole board that the parolees be placed on

parole, that the parole board was negligent

in granting parole, and that certain other

parole officers were negligent in supervising

the parolees while they were on parole. 

With regard to the parole board’s action

granting parole, the court stated that such

decisions are quasi-judicial and, therefore,

the parole board is entitled to absolute

immunity from liability. The court also

extended absolute immunity to the recommendations of parole officers made to the

parole board concerning the suitability of an

individual for parole, finding that these recommendations were quasi-judicial in nature.

On the issue of the supervision of parolees,

the court disagreed that officers were entitled to absolute immunity for all of their

actions. Nevertheless, the court did give

them qualified immunity, saying that parole

officers are immune from liability for

allegedly negligent parole supervision if their

action is in furtherance of a statutory duty

and in substantial compliance with the directives of superiors and relevant regulatory

guidelines. In addition, the court said that

parole officers did not have to show that

their actions were reasonable once it had

been shown that the officers performed a

statutory duty in compliance with the directives of superiors and relevant guidelines.

Moreover, the court stated that individual

liability would attach only if a parole officer’s conduct was not in substantial compliance with the directives of superiors and

regulatory procedures.

The court proceeded to determine whether

the alleged actions by the parole officers in

Taggart and Sandau created a fact issue concerning whether their conduct was not in

substantial compliance with the rules and

regulations of the parole agency. The court

noted that the policy and procedures established by the parole agency in the State of

Washington required parole officers to take

certain steps in supervising parolees (i.e.,

perform regular drug testing, conduct field

contacts, and apply certain sanctions upon

learning of violations of the conditions of

parole). Moreover, the court observed that in

both Taggart and Sandau, parole officers had

failed to perform certain responsibilities as

required by agency policies and directives.

Hence, the court held that there existed a

fact issue concerning whether the parole officers had been negligent in supervising their

parolees and remanded both cases to the

lower court for resolution of the fact issues.

Many courts in this country, especially in

the state of Washington, have continued

to recognize a cause of action for negligent

supervision under certain fact situations. In

Hertog v. City of Seattle,

72 the defendant, a

convicted sex offender, was placed on probation. While on probation, the defendant

raped a 6-year-old girl. The guardian of the

girl brought suit against certain individual
135

CHAPTER

8

SUPERVISION

officers and the city of Seattle, claiming

negligent supervision. In particular, the

guardian alleged that the probation officer

failed to monitor the probationer’s compliance with the conditions of probation.

The facts in this case showed that the probation officer knew that the probationer was

likely to cause bodily harm to others, that

his previous criminal history showed an

escalation to more serious sex offenses, and

that his offenses were linked to alcohol and

drug abuse. Moreover, testimony was introduced in the trial that an experienced officer

would have provided intensive supervision

to this type of offender. Consequently, the

appellate court held that a material fact

existed concerning whether the probation

officer had a duty to take reasonable steps to

prevent the probationer from committing a

reasonably foreseeable injury.

B. Immunity Defenses

The courts over the last decade have also

examined the defense of immunity to claims

alleged against probation/parole officers.

In Kipp v. Saetre,

73 a judge attempted to

“revoke” an offender’s probation without

affording the individual a hearing. In addition, a probation revocation warrant was

issued on the defendant. In a postsentencing

hearing, it was determined that the “revocation proceeding” was invalid.

The offender filed a lawsuit against the

judge, probation officer, and prosecuting

attorney, claiming that he had been falsely

arrested and imprisoned. On appeal, the

Minnesota appellate court held that the probation officer was entitled to immunity. The

court noted that it was the judge who made

the decision to issue the warrant for the

offender’s arrest and directed the probation

officer to do so accordingly. The probation

officer was simply complying with the order

of the judge. Thus, the appellate court held

that a probation officer, when acting in association with a judge, could assert absolute

immunity as a defense.

In another court decision, a Texas appellate

court examined the claim of official immunity asserted by a probation officer in a

suit brought by a probationer. In Rhodes v.

Torres,

74 the plaintiff had been placed on

probation for the misdemeanor offense of

cruelty to animals. As a condition of her

probation, the trial court had ordered her

to perform 50 hours of community service

for a local branch of the Society for the

Prevention of Cruelty to Animals (SPCA).

Having confirmed several times with the

local branch that the plaintiff had failed to

complete her community service, the probation officer supervising her filed a motion to

revoke her probation. After the motion had

been filed, the local SPCA notified the probation officer that there was a mistake with

the society’s records and the plaintiff had,

in fact, performed the requisite number of

hours of community service.

The plaintiff filed a lawsuit against the probation officer; the probation officer claimed

official immunity. The trial court agreed

with the probation officer’s claim and dismissed the lawsuit. The plaintiff appealed

this decision to an intermediary appellate

court. The appellate court stated that government employees, including probation

officers, are entitled to official immunity

from suits arising from the performance of

their (1) discretionary duties in (2) good

faith as long as they are (3) acting within

the scope of their authority. In this case, in

examining whether the officer acted in good

faith, the court adopted an objective, as

opposed to subjective, test for determining

good faith. The court stated that a probation officer acts in good faith in causing the

arrest of a probationer if a reasonably prudent officer, under the same or similar circumstances, could have believed that causing

the arrest of the probationer was lawful in

light of clearly established law and the information possessed by the officer at the time

he filed the motion to revoke.

In the Rhodes case, the appellate court noted

that the probation officer had every reason
136CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

to believe that the plaintiff had not completed her community service hours as mandated

by the trial court. The court observed that

the officer not only verified and reverified

the information on which he relied in filing

the motion but that he also consulted with

his supervisor and the judge who had indicated their concurrence with his decision to

request that a motion to revoke be filed. Thus,

the court held that the evidence raised in the

trial court conclusively established all of the

elements of the defense of official immunity.

■■■

SUMMARY This chapter deals with liability exposure

in supervising offenders. The United

States Supreme Court has declared that warrantless searches of probationers and parolees

may be conducted under certain circumstances. Nevertheless, the Supreme Court

has left several important issues regarding

the fourth amendment rights of probationers

and parolees for the lower courts to address.

It also deals with the complex issue of possible liability for disclosure or nondisclosure

of information. In general, officers are protected from liability in supervision but there

might be liability if a “special relationship”

exists, whatever that means. However, officers may be negligent if they could have

reasonably foreseen that their actions in

supervising an offender could result in harm

to an identifiable victim. In the area of violations, the law is clear: The officer has a

responsibility to inform the court or board

of parole whenever the offender has breached

the conditions of release. However, once the

officer has brought the matter to the attention of the proper authority, then he or she

has discharged his or her responsibility. In

addition, monetary collections should be

carefully handled by the field officer. Finally,

as a general rule, an officer must give the

Miranda warnings if the probationer is in

custody and if the evidence obtained is to

be used in a criminal trial. 

Notes

1. Note, Striking the Balance Between Privacy and

Supervision: The Fourth Amendment and Parole

and Probation Officer Searches of Parolees and

Probationers, 51 N.Y.U. L. Rev. 800, 800 (1976).

2. Griffin v. Wisconsin, 107 S. Ct. 3164 (1987).

3. See Tamez v. State, 534 S.W.2d 686 (Tex. Cr.

App. 1976), decided prior to the United States

Supreme Court holding in Griffin v. Wisconsin,

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

(1999).

5. State v. Moses, 618 A.2d 478 (Vt. 1992).

6. United States v. Consuelo-Gonzales, 521 F.2d

259, 262 (9th Cir. 1975).

7. Id. at 263.

8. United States v. Bradley, 571 F.2d 787 

(4th Cir. 1978).

9. Id. at 789.

10. United States v. Workman, 585 F.2d 1205

(4th Cir. 1978).

11. Ryan v. State, 580 F.2d. 988 (9th Cir.), cert.

denied, 440 U.S. 977 (1978); United States v.

Dally, 606 F.2d 861 (9th Cir. 1979).

12. Ryan v. State, 580 F.2d 988 (9th Cir.), cert.

denied, 440 U.S. 977 (1978).

13. United States v. Ooley, 116 F.3d 370 

(9th Cir. 1997).

14. In re Tyrell, 876 P.2d 445 (Cal. 1998).

15. The California Supreme Court extended the

holding in Tyrell to parolees in People v. Reyes,

968 P.2d 445 (1998).
137

CHAPTER

8

SUPERVISION

16. See People v. Mason, 488 P.2d 630 (Cal.

1971); State v. Montgomery, 566 P.2d 1329

(Ariz. 1977); State v. Josephson, 867 P.2d 993

(Idaho 1993); Allen v. State, 369 S.E.2d 909

(Ga. 1988); and Himmage v. State, 469 P.2d 763

(Nev. 1972).

17. See United States v. Jarral, 754 F.2d 1457

(9th Cir. 1985). See also, United States v.

Richardson, 849 F.2d 439 (9th Cir. 1988). 

18. See United States v. Watts, 67 F.3d 795 

(9th Cir. 1995).

19. See United States v. McDonald, 21 F.3d

1117 (9th Cir. 1994).

20. See Toney v. State, 572 So. 2d 1308 (Ala. Cr.

App. 1990).

21. Hill, Rights of the Convicted Felon on Parole,

13 U. Rich. L. Rev. 370, 371 (1979). See also,

State v. Perbix, 331 N.W.2d 14 (ND 1983).

22. People v. Anderson, 189 Colo. 34, 536 P.2d

302 (1975).

23. People v. Santos, 82 Misc. 2d 184, 368

N.Y.S.2d 130, (N.Y. County Sup. Ct. 1975).

24. State v. Williams, 486 S.W.2d 468 (Mo.

1972). See also, People v. Anderson, 189 Colo.

34, 536 P.2d 302 (1975); State v. Pinson, 104

Idaho 227, 657 P.2d 1095 (1983).

25. State v. Sievers, 511 N.W.2d 205, 2 Neb.

App. 463 (1994).

26. Souders v. Kroboth, 547 F. Supp. 187

(U.S.D. Pa. 1982); Hunter v. State, 139 Ga.

App. 676, 229 S.E.2d 505 (1976); State v.

Davies, 9 Or. App. 412, 496 P.2d 923 (1972).

27. See State v. Epperson, 576 So. 2d 96 

(La. App. 1991).

28. See People v. Reyes, 968 P.2d 445 

(Cal. 1998).

29. See Vernon’s Annotated Texas Penal Code,

Section 46.15.

30. See 61 Pennsylvania Statutes, sec. 309.1, and

New York State Criminal Procedural Law, art.

2.10, sec. 23.

31. See Daniels v. Williams, 106 S. Ct. 662

(1986).

32. See Estelle v. Gamble, 429 U.S. 97 (1976).

See also, County of Sacramento v. Lewis, 523

U.S. 833 (1998) and Schaefer v. Goch and

Marathon County, No. 97 C 394 (7th Cir.

1998).

33. See City of Canton v. Harris, 109 S. Ct.

1197 (1989). See also, Paiva v. City of Reno, 939

F. Supp. 1474 (D. Nev. 1996).

34. Popow v. Margate, 476 F. Supp. 1237 

(D. N.J. 1979). 

35. Russo v. City of Cincinnati, 953 F.2d 1036

(6th Cir. 1992).

36. City of Canton v. Harris, 109 S. Ct. 1197

(1989).

37. Tennessee v. Garner, 105 S. Ct. 1694 (1985).

38. J. Kutcher, The Legal Responsibility of

Probation Officers in Supervision, 41 Fed. Prob.

35, 37-38 (1977).

39. Anderson v. Boyd, 714 F.2d 906 (9th Cir.

1983).

40. State v. Roberts, 14 Wash. App. 727, 544

P.2d 754 (1976).

41. Id. at 730, 544 P.2d at 757.

42. Fare v. Michael C., 442 U.S. 207 (1979).

43. Id. at 719-720.

44. See Industrial Foundation of the South v.

Texas Industrial Accident Board, 540 S.W.2d

668 (Tex. 1976).
138

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

45. See Victoria Bank and Trust v. Brady, 811

S.W.2d 931 (Tex. 1991).

46. The federal regulations implementing 42

U.S.C. 290dd-2 are found in 42 CFR Part 35.

47. Unpublished remarks of Judd D. Ketcher to

the American Probation and Parole Association

(October 29, 1980).

48. Guide to Judiciary Polices and Procedures:

Probation Manual, Chapter 4, 1983.

49. Johnson v. State, 69 Cal. 2d 782, 447 P.2d

352, 73 Cal. Rptr. 240 (1968).

50. Georgen v. State, 196 N.Y.S.2d 455, 18

Misc. 2d 1085 (Ct. Cl. 1959).

51. Rieser v. District of Columbia, 563 F.2d 462

(D.C. Cir. 1977).

52. Meyers v. Los Angeles County Probation

Department, 78 Cal. App. 3d 309, 144 Cal.

Rptr. 186 (1978).

53. Johnson v. State, 69 Cal. 2d 782, 447 P.2d

352, 73 Cal. Rptr. 240 (1968).

54. Id. at 785, 447 P.2d at 355, 73 Cal. Rptr. at

243.

55. Georgen v. State, 196 N.Y.S.2d 455, 18

Misc. 2d 1085 (Ct. Cl. 1959).

56. Rieser v. District of Columbia, 563 F.2d 462

(D.C. Cir. 1977).

57. Id. at 479.

58. Meyers v. Los Angeles County Probation

Department, 78 Cal. App. 3d 309, 144 Cal.

Rptr. 186 (1978).

59. Semler v. Psychiatric Institute, 538 F.2d 121

(4th Cir. 1976).

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

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

61. People v. Beckler, 459 N.E.2d 672 (Ill. App.

Ct. 1984).

62. United States v. Glasgow, 389 F. Supp. 217

(D.D.C. 1975); Jones v. State, 360 So. 2d 1158

(Fla. Dist. Ct. App. 1978); State v. McCain, 150

N.J. Super. 497, 376 A.2d 185 (Super. Ct. App.

Div. 1977); State v. Marshall, 247 N.W.2d 484

(S.D. 1976).

63. State v. Thieme, 89 Wisc. 2d 287, 278

N.W.2d 274 (1979).

64. Cothron v. State, 377 So. 2d 255 (Fla. Dist.

Ct. App. 1979).

65. People v. Julye, 64 A.D.2d 614, 406

N.Y.S.2d 529 (1978).

66. United States v. Crocker, 435 F.2d 601

(1971).

67. Pouliot v. Hodgdon, 119 N.H. 437, 402

A.2d 199 (1979).

68. McCrady v. Mahon, 119 N.H. 247, 400

A.2d 1173 (1979).

69. Bearden v. Georgia, 461 U.S. 660 (1983).

70. Division of Corrections v. Neakok, 721 P.2d

1121 (Alaska Sup. Ct. 1986).

71. See Taggart v. State and Sandau v. State, 822

P.2d 243 (Wash. Sup. 1992).

72. Hertog v. City of Seattle, 943 P.2d 1153

(Wash. App. 1997).

73. Kipp v. Saetre, 454 N.W.2d 639 (Minn.

App. 1990).

74. Rhodes v. Torres, 901 S.W.2d 794 (Tex. App.

Houston [14th Dist.], 1995).
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 

REVOCATION PROCEEDINGS

CHAPTER 9
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
141

CHAPTER

9

REVOCATION

INTRODUCTION

The release of an offender on probation

or parole implies that, in the best judgment of the releasing authority, the releasee

will thereafter respect and abide by the

law and observe the conditions of release.

Unfortunately, this expectation does not

always materialize. In 1998, 17 percent of all

probationers and 42 percent of all parolees

were reincarcerated because of a technical

violation of the conditions of release or

because of the commission of a new offense.1

Consequently, situations arise that warrant

consideration of revocation of probation or

parole. All field officers must be aware of the

basic legal principles that govern revocation,

as well as their agencies’ detailed procedures.

The controlling judicial decisions on revocation are Morrissey v. Brewer,

2 a 1972 Supreme

Court case, and Gagnon v. Scarpelli,

3 a case

the Supreme Court decided the year following the Morrissey v. Brewer decision. In

Morrissey, the Supreme Court held for the

first time that parolees faced with parole revocation were entitled to certain due process

rights. In Gagnon v. Scarpelli, the Supreme

Court extended its legal holding in Morrissey

to probation revocation hearings, thus placing revocation of parolees and probationers

on the same level.

■■■

I. PAROLE REVOCATION: MORRISSEY

V. BREWER IS THE

LEADING CASE

A. The Factual Setting

Morrissey was convicted of passing a bad

check in Iowa in 1967. Upon a plea of

guilty, he was sentenced to 7 years in prison.

He was paroled in June 1968. Seven months

later, at the direction of his parole officer, he

was arrested in his hometown as a parole

violator and held in a local jail. A week later,

after review of the officer’s written report,

the Iowa Board of Parole revoked Morrissey’s

parole, and he was returned to prison.

Morrissey received no hearing prior to his

revocation.

Morrissey allegedly had violated the conditions of his parole by buying a car under

an assumed name and operating it without

permission of his parole officer. He was also

accused of giving a false address to the police

and an insurance company after a minor

traffic accident. Additionally, Morrissey was

alleged to have obtained credit under an

assumed name and failed to report his residence to his parole officer. According to the

parole officer’s report, Morrissey admitted

some of these technical violations of his

parole conditions.

After his parole was revoked, Morrissey

exhausted his state remedies and filed a

habeas corpus petition in federal district

court. He charged it was a denial of due

process to revoke his parole without a

hearing. The federal district court and the

Eighth Circuit Court of Appeals both denied

the petition, but the United States Supreme

Court granted his application for writ of

certiorari. The Supreme Court reversed the

decisions of the two lower courts.

B. The Reasoning of the Court

The Court began by observing that parole

has become an integral part of the correctional system and that it serves a number of

useful purposes. The Court said it is implicit

in the system that the parolee is entitled to

retain his liberty as long as he substantially

abides by the conditions of parole. It identified the components of the revocation

process as, first, a wholly retrospective factual inquiry concerning whether parole terms

were violated. Second, the Court further

noted that if it were found that a violation

has occurred then is it necessary to decide

the proper disposition of the matter, i.e.,
142CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

whether to revoke the parole of the individual and send him back to prison or to continue his parole with or without additional

conditions of parole.

The Court observed that revocation is not

part of a criminal prosecution and “thus the

full panoply of rights due a defendant in

such a proceeding does not apply to parole

revocation.”

4 It acknowledged that revocation is the deprivation of conditional liberty,

not the absolute liberty of the ordinary citizen. The Court then examined the nature

of this limited liberty in order to determine

whether it is within the ambit of the due

process guarantees found in the 14th

amendment. The Court said yes, saying:

5

We see, therefore, that the liberty of

the parolee, although indeterminate,

includes many of the core values of

unqualified liberty and its termination

inflicts a “grievous loss” on the parolee

and often on others. It is hardly useful

any longer to try to deal with this problem in terms of whether the parolee’s

liberty is a “right” or a “privilege.” By

whatever name, the liberty is valuable

and must be seen as within the protection of the fourteenth amendment.

Its termination calls for some orderly

process, however informal.

Finally, the Court assessed the governmental interest and found that it, too, would

be served by an informal hearing process

designed to develop the facts concerning the

alleged violation and the equities involved in

the sanction of revocation.

C. The Holding of the Court

After concluding that some process was due,

the Court proceeded to determine what procedures are required. The Court held that

two hearings should be conducted.

1. Preliminary Hearing 

A preliminary hearing is necessary, the

Court said, because there will often be a

substantial delay between the arrest of a

parolee and the date of the revocation hearing; there may also be a substantial distance

between the place of arrest and the final

hearing.

6

[S]ome minimal inquiry should be

conducted at or reasonably near the

place of the alleged parole violation or

arrest and as promptly as convenient

after arrest while information is fresh

and sources are available. . . . Such an

inquiry should be seen as in the nature

of a “preliminary hearing” to determine whether there is probable cause

or reasonable ground to believe that

the arrested parolee has committed acts

that would constitute a violation of

parole conditions.

The Court specified that the hearing officer

at this inquiry should be someone who is

not involved in the case (not necessarily a

judicial officer) and that the parolee should

be given notice of the hearing and of its

purpose. On the request of the parolee, persons who have given adverse information

on which the parole violation is based are

to be made available for questioning in the

parolee’s presence. However, confrontation

and cross-examination can be denied if the

hearing officer decides that the informant

would be placed at risk if identified. Based

upon the information presented (which he

must summarize for the record), the hearing officer should determine if there is

reason to warrant the parolee’s continued

detention. The hearing officer must state

the reasons for his decision and the evidence

relied on. The Court stated that the process

could be informal.
143

CHAPTER

9

REVOCATION

2. Revocation Hearing 

At the request of the parolee, the Court said,

there must be a second hearing to lead to a

final determination of any contested relevant

facts and consideration of whether the facts

warrant revocation, saying:7

The parolee must have an opportunity

to be heard and to show, if he can, that

he did not violate the conditions, or,

if he did, that circumstances in mitigation suggest the violation does not warrant revocation. The revocation hearing

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,

would not appear to be unreasonable. 

The Court went on to specify procedures

to be observed in the revocation hearing.

They include:

(a) Written notice of the claimed violation

of parole;

(b) Disclosure to the parolee of evidence

against him;

(c) An opportunity to be heard in person

and to present witnesses and documentary

evidence;

(d) The right to confront and crossexamine adverse witnesses (unless the

hearing officer specifically finds good

cause for not allowing confrontation);

(e) A “neutral and detached” hearing

body, such as a traditional parole board,

members of which need not be judicial

officers or lawyers; and

(f) A written statement by the fact finders

as to the evidence relied on and reasons

for revoking parole.8

The Court did not decide the question as

to whether the parolee could have the assistance of retained counsel, or appointed

counsel if he were indigent. When this issue

was addressed in Gagnon v. Scarpelli,

9 the

Court held that decisions would have to be

made on a case-by-case basis, with consideration given to the presence or absence of

contested facts, any possible mitigating circumstances to be considered in opposition

to revocation, and the apparent ability of the

probationer or parolee to present his case

effectively. Gagnon v. Scarpelli also held that

the above rights given to parolees must

also be given to probationers in probation

revocation proceedings (see section III,

Probation Revocation: Gagnon v. Scarpelli

Is the Leading Case).

■■■

II. COURT DECISIONS

AFTER MORRISSEY

Although Morrissey was unusually

detailed, the facts of the case did not

present the infinite variety of situations

encountered in day-to-day administration

of the probation and parole systems. In the

nearly three decades since Morrissey was

decided, there has been considerable litigation seeking to hone its rules and define the

parameters of those rules. This section presents court decisions addressing a number of

significant issues. Legislatures and administrative agencies have also sought to codify

the Morrissey rules for individual systems,

but these legislative refinements are not considered here. What follows addresses only

court decisions.

A. Preliminary Hearing Issues

1. Location 

The only time a problem appears to arise

here is when violations have occurred in

different geographical jurisdictions. An

Eighth Circuit Court of Appeals decision10

appears to state the general rule. The

“arrest” referred to by the Supreme Court

in Morrissey refers to the probation or parole

violation arrest. Hence, the requirement that

the preliminary hearing be held “near” the
144

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

place of arrest was not violated when a

Nebraska probationer received a Nebraska

hearing to consider alleged probation violations that occurred in Oklahoma.

2. Promptness 

The jurisdictions vary considerably on this

point. At one end, New York typifies a point

of view that the determination of what constitutes a “reasonably prompt inquiry” must

be made on a case-by-case basis.11 California

case law suggests the outside limit of promptness is 4 months, after which charges will be

struck.12 This seems reasonable, perhaps generous, because the period does not begin

when cause to consider revocation is discovered; it only starts when the probationer or

parolee is summoned or arrested. Another

perspective is typified by Arizona law, where

the limits of promptness are not less than 7

or more than 20 days after service of summons or warrant, unless the probationer

requests otherwise.13

Some courts have held that it is possible to

dispense with the preliminary hearing and

retain the necessary due process. The Supreme

Court held this to be the case in a 1976

decision14 concerning a parolee who had

been convicted of a new offense. The conviction conclusively establishes the necessary

probable cause in such situations. Also, if

the formal revocation hearing is held within

a reasonable time after the alleged violation,

a single revocation hearing may be sufficient. The view is typified by Michigan and

appears to be the preferred method among

states.15 The constitutionality of this procedure was challenged in a Texas case, which

went to the United States Supreme Court.16

The Court, however, dismissed the appeal

without authoritatively settling this issue.

3. Form of Notice 

The general rule is typified by an Eighth

Circuit ruling that requires written notice only

with respect to the final hearing and not with

respect to a preliminary hearing.17 However, in

situations in which an acceptable combined

preliminary and revocation hearing is utilized,

such as in probation revocation proceedings,

the notice must allege the violation with

greater specificity than would be required

for only a preliminary hearing.18

4. Impartial Hearing Officer 

The person conducting the hearing need not

be a judicial officer or an attorney. He or she

only must be impartial and detached, which

appears to exclude only the parole officer

who initiated the arrest. A different parole

officer may conduct the hearing.19

B. Revocation Hearing Issues

1. Notice of Hearing 

Morrissey requires that “written notice of the

claimed violation of parole” be given. The

states have shown considerable variation in

determining the minimally acceptable form

of notice. Most states have demanded reasonably complete notice to comply with standards of fairness. However, since Morrissey

did not delineate any definite standards,

states have been left to their own devices.

For example, North Dakota found adequate

a notice that did not mention the time and

place of the hearing.20 It is the majority rule

that when notice is not given because the

parolee makes himself unavailable, his failure to receive it does not violate his constitutional rights.21 Although it is not always

necessary that the parolee receive the notice,

the mere affidavit of a hearing officer that

he had directed that a violation report be

sent to the individual was not enough.22

Presumably, the failure to receive notice

must be through the fault of the parolee.

2. Disclosure of Evidence 

The Morrissey requirement of disclosure of

the evidence against the parolee at the revocation hearing may be met by a number of

methods. In some jurisdictions, mere verbal

notice has sufficed, although written notice

is generally preferable. Most jurisdictions

allow the parolee access to pertinent official

records and materials.23 However, as long as
145

CHAPTER

9

REVOCATION

the parolee is advised in some manner of

the evidence against him or her, the parole

officer need not reveal his or her report or

notes to the parolee. A federal district court

in New York upheld denial of a parolee’s

access to his parole officer’s chronological

entries of conversations with the parolee.24

3. Confrontation and Cross-Examination 

In Morrissey, the Supreme Court said that at

a revocation hearing a parolee should have

the right to confront and cross-examine

adverse witnesses, unless the hearing officer

excuses confrontation for good cause. The

Court also said that the revocation hearing

was not the same as a criminal trial and, as a

result, the process should be flexible enough

to permit consideration of material, such

as letters and affidavits, that would not be

allowable in a trial. These statements by the

Court are somewhat contradictory because

the reason that such materials are usually

excluded (when offered to prove a material

fact) is that their consideration would deprive

a defendant of his or her right of confrontation and cross-examination. What have the

courts said on this issue?

4. Hearsay Admissibility 

Whether an officer may present hearsay testimony at a revocation proceeding has received

varied treatment. Hearsay has been held

admissible in Florida25 and New York.26 In

most other states, hearsay has been construed

to violate the due process requirements of

Morrissey. All states have since enacted statutes

compelling the appearance of witnesses for

the defendant and permitting their confrontation and cross-examination unless good cause

is shown for not allowing it.27

In practice, exclusion of hearsay evidence

means that an officer’s testimony that he

has been informed of a violation of parole

conditions, standing alone, will not be sufficient for revocation. In most cases, the person who witnessed the violation will be

required to testify. In Colorado, revocation

was not allowed based on a probation 

officer’s testimony that the defendant

had stolen 40 dollars from his employer

because it was hearsay unsupported by evidence.28 Due process was violated because

there was no confrontation and crossexamination of the employer by the defendant. In Pennsylvania, testimony of a

probation officer of what he was told by a

hospital staff member was hearsay and not

sufficient to revoke probation. Good cause

was not shown for denying confrontation

and cross-examination.29

There is some support for the proposition

that an officer must be sufficiently familiar

with the facts of the defendant’s case to testify. Even though hearsay is permitted in revocation proceedings in Florida, probation

revocation based solely on the testimony of

an officer who took the case after the violations occurred was not allowed.30 In a similar

vein, the testimony of a probation officer was

not allowed at a criminal trial for armed robbery because the officer was not an intimate

acquaintance of the defendant, and he had

not seen the probationer for 7 months.31

This could be construed in the parole or

probation revocation setting to mean that

remoteness in time of contact with a parolee

(or probationer) may have some bearing on

the validity of an officer’s testimony, especially testimony governing any general

propensity of the part of the offender to

engage in particular forms of behavior.

The rule forbidding revocation on the basis

of hearsay evidence cannot be avoided simply because the officer presents the evidence

in a written report rather than in verbal testimony at the hearing. An Oklahoma court

stated, concerning a hearsay statement, that

the fact that the probation officer had written the statement into his report did not

make the statement admissible under the

“business records” exception to the hearsay

rule.32 Louisiana applied this same reasoning

in a case in which a probation officer stated

in his report that the defendant’s parents had

information that the defendant was sniffing

glue.33 The requirement of confrontation
146

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

and cross-examination of witnesses cannot

be avoided by means of an affidavit for the

same reasons. In Pennsylvania, an affidavit

by a police officer that the defendant possessed narcotics was not sufficient for revocation.34 The majority of courts apparently

require fairly strict compliance with the

Morrissey requirements of confrontation and

cross-examination of witnesses, so information contained in the officer’s report will

usually need to be corroborated by extrinsic

evidence or testimony.

■■■

III. PROBATION

REVOCATION:

GAGNON V. SCARPELLI

IS THE LEADING

CASE

I

n 1973, the Supreme Court considered

whether its holding in Morrissey v. Brewer

should apply to probation revocations. In

Gagnon v. Scarpelli,

35 the defendant had been

convicted in a Wisconsin state court for

armed robbery but placed on probation for

7 years. The defendant was permitted to

move to Cook County, Illinois, under the

Interstate Compact. Nevertheless, while in

Illinois, he was arrested for burglary of a

house. The state of Wisconsin revoked his

probation without giving him a hearing.

After having been imprisoned in Green Bay,

Wisconsin, to serve his sentence for armed

robbery, the defendant filed an application

for writ of habeas corpus. The defendant

raised two issues in his application: one, that

he was denied a hearing on his revocation of

probation, and two, that he was not afforded

counsel. He contended that both these matters involved his due process rights. The

United States Supreme Court granted his

application for writ of certiorari and accepted the case for decision.

The Supreme Court, noting its earlier holding in Morrissey, observed that there was

little if no difference between the revocation of parole and probation and that logic

would dictate that the legal principles enunciated in Morrissey should be held applicable

to probation revocations. Thus the Court

held that a probationer, like a parolee, is

entitled to a preliminary and a final revocation hearing under the conditions specified

in Morrissey v. Brewer.

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

not been addressed by the Court in Morrissey.

Although the Supreme Court had previously

held that an indigent defendant has the right

to court-appointed counsel whenever he/she

was charged with an offense that carried the

possibility of imprisonment or confinement

in jail,36 the Court in Gagnon v. Scarpelli

refused to hold that a probationer or parolee

had an absolute constitutional right to the

appointment of counsel in a revocation proceeding. The Court noted that a revocation

proceeding, unlike a criminal trial, was not

a true adversarial proceeding. Moreover, the

Court observed that certain inherent objectives in probation and parole, such as the

speedy disposition of revocation matters

and the overall goal of successfully reintegrating an offender back into society, would

be thwarted if counsel were appointed to a

probationer or parolee in all cases.

Nevertheless the Court recognized that in

certain circumstances, fundamental fairness

would require that counsel be appointed

for an indigent offender in a revocation

proceeding. The Court stated:

Presumptively, it may be said that

counsel should be provided in cases

where probationer or parolee makes

such a request, based on a timely and

colorable claim (1) that he has not

committed the alleged violation of the
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conditions upon which he is at liberty;

or (2) that, even if the violation is a

matter of public record or is uncontested, there are substantial reasons which

justified or mitigated the violation and

make revocation inappropriate, and

that the reasons are complex or otherwise difficult to develop or present.

Thus the Court held that the decision to

appoint counsel for an indigent probationer

or parolee must be made on a case-by-case

basis.

■■■

IV. OTHER ISSUES IN

PAROLE AND PROBATION REVOCATION

PROCEEDINGS

For some issues, Morrissey and Gagnonoffer little assistance. For instance, must

revocation be limited to violation of explicit

conditions? Would not any illegal act violate

the spirit of probation or parole statutes? Is,

in the case of an arrest, the evidence of an

illegal act conclusive? Is conviction a required

prerequisite to a finding that an illegal act

occurred? Although Morrissey was extensive

and detailed enough to provide guidance on

many issues, answers in other areas were not

suggested directly. How much proof, for

example, is needed to support the decision

to revoke? The response of the courts to a

number of these supplemental questions is

presented in this section.

Appellate courts have scrupulously attempted to apply the Supreme Court’s holdings in

Morrissey and Gagnon. As recently as 1999,

the Fifth Circuit United States Court of

Appeals in Williams v. Johnson37 held that the

due process guarantees enunciated by the

Supreme Court in Morrissey are as equally

applicable to revocation hearings as to preliminary hearings. Moreover, in John v.

United States Parole Commission,

38 the Ninth

Circuit United States Court of Appeals stated that, in circumstances in which the law

leaves within the discretion of the parole

board the decision as to whether or not to

revoke an individual’s parole, not only is the

individual entitled to a revocation hearing

but also the parole authority must abide by

the six requirements of accurate fact-finding

set out in Morrissey as necessary to satisfy the

“minimum requirements of due process.” 

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 inflexible structure for parole revocation procedures. The few basic requirements

set out above, which are applicable to

future revocations of parole, should

not impose a great burden on any

state’s parole system.

This statement has raised the question concerning whether the due process guarantees

in Morrissey are absolute, or whether the flexibility mentioned permits exceptions to be

made under justifiable circumstances. Thus

appellate courts have struggled over the years

to determine whether the six basic requirements established in Morrissey are ironclad

due process guarantees or whether some

deviations are permissible.

A. Necessity of Preliminary

Hearing 

Despite the Court’s holding in Morrissey

mandating a preliminary hearing, appellate

courts under certain circumstances have

dispensed with a preliminary hearing. The

United States Supreme Court in Moody v.

Daggett 39 held that if a parole violation warrant alleges that the parolee violated the conditions of his parole by being convicted of

(as opposed to charged with) another criminal offense, then a preliminary hearing is

not required. The Court reasoned that since

the purpose of the preliminary hearing is to
148CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

establish probable cause to believe that the

alleged violation occurred, a criminal conviction obtained in a court of law suffices to

establish that probable cause exists to believe

that the parolee committed the criminal

offense. In Ellis v. District of Columbia

,

40

the United States Court of Appeals for the

District of Columbia held that the policy

in the District of Columbia mandating that

revocation hearings be conducted within 30

days of the arrest of a parolee satisfied the

requirement that a preliminary hearing be

conducted, and thus the preliminary and

revocation hearing could be combined.

B. Standard of Proof 

The standard of proof required to support

revocation will have an effect upon an officer’s decision to submit the case to the

authority entrusted with making the revocation decision. Where an officer is conducting the revocation hearing, knowledge of the

standard of proof required for revocation in

the jurisdiction is essential. There is wide

latitude among the states in determining the

proper standard, and any formulation of a

general rule would be of little help. For

example, Georgia requires only “slight evidence” for revocation,41 whereas Oklahoma

requires that the decision be supported by a

preponderance of evidence that could have

been deemed more probably true than not.42

Parole officers in each jurisdiction should

consult legal counsel or departmental standards to determine the standard of proof

required to revoke parole.

C. Nature of Proof Required 

Illinois has held that once a defendant has

admitted the grounds for violation of probation, the admission eliminates the necessity

of proof by the state.43 Louisiana, on the other

hand, has held revocation improper where

the only evidence relied upon was the probationer’s uncounseled guilty plea.44 Florida

has held that some overt act is required to

revoke parole. The mere statement of the

parolee that he intended to violate his parole

conditions was insufficient for revocation.45

Often the testimony of the officer in charge

of a probationer or parolee is crucial at a

revocation proceeding. Whether the testimony of an officer—unsupported by other

evidence—is sufficient to revoke parole varies

in different states. A Texas court held that

revocation cannot be based merely on the

conclusionary statement of a probation officer that the probationer failed to report at

least once a month as directed.46 Oklahoma

did not permit revocation based solely on

an officer’s testimony without supporting

evidence that the defendant had moved to

Missouri.47 North Carolina reached the opposite result, holding that the uncontradicted

testimony of a probation officer—that the

defendant had been fired from his job and

had not made payment toward his probation

costs—was sufficient to support a revocation.48

Similarly, in Georgia (where only “slight evidence” is needed), probation revocation was

upheld based solely on the testimony of an

arresting officer that in his opinion the probationer was driving while intoxicated.49 (Even

laymen usually are allowed to give an opinion

on drunkenness.) It seems probable that similar reasoning would be applied to a parole

officer in Georgia.

Courts probably will insist on detail in

appropriate cases, rather than accept an

officer’s conclusions about an event. In

an Oregon case,50 a probation officer was

required at a revocation hearing to testify to

the precise relationship of the probationer

with the 4-year-old daughter of the woman

with whom the probationer was living. A

probation condition prohibited the probationer from associating with young girls.

The court was unwilling to equate living

in the same household with the proscribed

“association”; the court wanted to draw its

own conclusion from the facts observed by

or known to the officer. 

As the above cases demonstrate, there is no

clear rule on whether a parole (or probation)

officer’s testimony unsupported by other
149

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REVOCATION

evidence will be sufficient to revoke parole

(or probation). But it must be noted that

uncorroborated testimony concerning an

observed event is admissible. Thus, if the

parole or probation officer has personal

knowledge of the event that forms the basis

of the alleged violation (e.g., saw the offender consuming alcohol or present at a place

or location prohibited by the court or parole

board), or the offender made an admission

against his penal interest to the officer (e.g.,

admitting that he had been taking drugs

when ordered not to by the court or parole

board), then this evidence is generally sufficient to justify a court or parole board revoking the offender’s conditional release.

Probation/parole officers should also recognize that although testimony might be

objectionable for one purpose, it might, nevertheless, be received for another legal purpose. For example, the Supreme Court has

held that even though evidence obtained in

violation of Miranda may not be introduced

in the case chiefly to prove that a defendant

actually committed the criminal offense

alleged, such evidence may still be introduced for impeachment purposes if the

defendant takes the stand and denies that

he committed the act alleged by the State.51

Thus, probation and parole officers need

to be aware that even if certain evidence is

ordinarily excludible in a revocation hearing, it may still be admissible as rebuttal

evidence, for impeachment purposes, or

to show the state of mind of the offender.

In addition, if a probation or parole officer

does not have personal knowledge of the

incident that forms the basis of the revocation proceeding, then ordinarily any testimony on the part of the officer would not

be probative, meaning it could not support

a finding that the probationer or parolee

actually committed the violation alleged.

Thus, on the issue of whether a probationer

or parolee had a particular history of arrests,

or had written certain bad checks, the officer

might not be a qualified witness. A certified

copy of a police record or the testimony of a

bank officer might be deemed necessary to

prove such matters. 

Moreover, what type of evidence is probative

is also dependent on what violation of the

conditions of release is alleged. For example,

proof that a parolee or probationer was

arrested for a new offense would not be sufficient to prove an allegation that the offender

committed a new offense. However, proof of

an arrest might be sufficient if the allegation

were that a condition of the offender’s release

was to report all new arrests to his probation

or parolee officer and he had failed to do so.

Thus in determining whether to seek revocation of an offender’s conditional release, a

probation or parole officer must not only

consider the probative value of any evidence

he may have concerning a particular violation of the conditions of release, but also

evaluate the probative value of this evidence

in light of other conditions imposed by the

court or parole board.

A West Virginia case illustrates the points

made regarding the admissibility of evidence

for limited purposes.52 In that case, the

defendant had been charged as an accessory

to murder. He took the stand in his own

defense and, in the course of seeking to

establish his good character, acknowledged

that he had been previously convicted in

Ohio, but claimed that he had observed the

conditions of his parole. The defendant had

in fact violated a nonassociation parole condition. Ordinarily observance of parole conditions was clearly collateral to the murder

prosecution; thus, the rules of evidence normally would bar the testimony because

impeachment is not permitted on a collateral matter. Nevertheless the court held, in

this particular case, that the testimony could

be received for the limited purpose of suggesting that the defendant did not always

tell the truth; hence, his version of the facts

in the murder case might not be credible.
150CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

D. Limitation on Testimony 

The cases do not tell the precise limits on the

relevance of the testimony or other evidence

that may be offered to support revocation.

One New York case,53 however, shows that

there are limits. In that case, after the revocation hearing but before any decision was

announced, an officer discovered that the

parolee had written more bad checks than

were considered at the hearing; he brought

this information to the attention of the hearing officer. In a summary opinion, which

did not explain the court’s reasoning, this

was held to be improper, and a new hearing

before a different examiner was ordered. A

number of Morrissey rights arguably were

interfered with. There was no written notice

about these additional “charges,” and the

parolee had no opportunity to refute or

explain them. Moreover, the additional information might have been viewed as tending

to bias the hearing examiner.

E. Right to Speedy Hearing

Generally, most courts have held that a probationer or parolee does not have a sixth

amendment right to a speedy hearing on the

allegations of violations of the conditions of

release. Instead appellate courts have held

that the sixth amendment right to a speedy

trial as guaranteed in the United States

Constitution is applicable only to criminal

trials and not to revocation proceedings.

Nevertheless, despite holdings that a probationer or parolee facing a revocation hearing

does not have a sixth amendment right to a

speedy hearing, courts have entertained the

notion that an unacceptable delay procuring

the arrest (as opposed to conducting the hearing) may implicate certain due process rights. 

In Bennett v. Bogan

,

54 the defendant had

been sentenced in federal court to 8 years in

prison and 5 years on special parole for a

controlled substances offense. However, the

defendant was also sentenced to a state

prison by a New Jersey court. The defendant

was placed in a New Jersey state prison but

was subsequently granted probation and

released. While on probation, the defendant

was arrested for drug trafficking. The United

States Parole Commission issued a parole

violator warrant. However, at the hearing

to revoke his parole, the parole commission

decided to withdraw the warrant and to

have the defendant extradited to New Jersey

in order to be tried on the state drug trafficking charges.

Several years after the decision to remand

the defendant to the custody of New Jersey

officials, the United States Parole Commission

issued a second parole violator warrant, alleging the same conduct alleged in the first

warrant and also alleging that the defendant

had failed to report to his parole officer while

awaiting trial on the New Jersey charges.

However, the parole commission did not

move to execute the warrant, i.e., cause the

parolee’s arrest, until 5

1/2 years after issuing the

warrant. The parolee was eventually arrested

on the warrant, and the parole commission

finally proceeded to revoke his parole. The

defendant/parolee contended on appeal that

his sixth amendment and due process rights

were violated by the delay of the parole commission in executing the second violation

warrant 5

1/2 years after it had been issued.

Although the United States Sixth Circuit

Court of Appeals rejected his assertion of a

sixth amendment right to a speedy revocation hearing, the court was open to considering a possible due process infringement.

The Court noted that previous courts,

in examining this issue, had held that a

parolee, in complaining of the delay in

arresting and then conducting a revocation

hearing, must demonstrate some harm and

prejudice in holding the hearing so long

after the issuance of the warrant. Moreover,

the Court acknowledged that the parole

commission, after issuing a parole violator

warrant, had some obligation to have

the defendant arrested on the warrant.

Nevertheless, the Court also said that certain

mitigating circumstances could preclude a
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parolee from asserting that his due process

rights were violated by failing to arrest him

in a timely manner. In this case, since the

parolee had failed to report to his parole officer, the Court held that the parolee’s actions

absolved the parole commission from speedily executing the parole violator warrant.

■■■

V. OTHER SUPREME

COURT DECISIONS

AFFECTING REVOCATION PROCEEDINGS

Four other Supreme Court rulings have

addressed issues related to probation

revocation. The first is Pennsylvania Board of

Probation and Parole,

55 decided in 1998 (illegally obtained evidence may be admitted in

revocation proceedings); in 1983, the Court

decided Bearden v. Georgia56 (whether an indigent’s probation can be revoked for failure to

pay a fine and make restitution); in 1984, the

Court handed down a ruling in Minnesota v.

Murphy57 (involving the admissibility of evidence obtained from the probationer without

the Miranda warnings); and in 1985, the

Court decided Black v. Romano58 (whether

due process requires courts to consider alternatives to probation prior to revocation).

These significant cases invite further details.

A. Illegally Obtained Evidence

May Be Admitted: The Case of

Pennsylvania Board of Probation

and Parole v. Scott

The most recent United States Supreme

Court decision dealing with revocation

proceedings addressed the issue concerning

whether evidence obtained in violation of a

constitutional provision could nevertheless

be introduced in a revocation proceeding. In

Pennsylvania Board of Probation and Parole v.

Scott,

59 the defendant pleaded nolo contendere

to the charge of third-degree murder and had

been sentenced to prison for 10 to 20 years.

Ten years later, the defendant was released

on parole. One of the conditions of the

defendant’s parole was that he refrain from

“owning or possessing any firearms or other

weapon.” In addition, the defendant signed

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

parole, he was arrested for several alleged

violations of the conditions of his release.

In addition, parole agents conducted a

search of the parolee’s residence, which was

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

residence. Although the parolee objected to

the introduction of the seized weapons at

his revocation hearing, the evidence was

nevertheless admitted at the hearing and

his parole was revoked.

The defendant appealed the admission of this

evidence to the Pennsylvania Supreme Court.

The defendant argued that the evidence was

seized in violation of his United States constitutional rights under the 4th and 14th

amendments. The Pennsylvania Court agreed

and held that the exclusionary rule applied

to this case. The State appealed this ruling

to the United States Supreme Court.

The United States Supreme Court noted

that it had applied the exclusionary rule only

where its deterrence benefits outweighed its

“substantial social costs.” Thus using this

analytical premise, the Court examined the

deterrence benefits versus the social costs in

applying the exclusionary rule to a revocation

proceeding. A majority of the Court stated:

[T]he application of the exclusionary

rule would both hinder the functioning of state parole systems and alter

the traditionally flexible, administrative

nature of parole revocation proceedings.

The rule would provide only minimal

deterrence benefits in this context,
152CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

because application of the rule in the

criminal trial context already provides

significant deterrence of unconstitutional searches.

Therefore, the Court held that the exclusionary rule did not ban the introduction at a

parole revocation hearing of evidence seized

in violation of a parolee’s fourth amendment

rights. In short, the Court held that the

Constitution does not require the states to

exclude illegally obtained evidence in revocation hearings. This means that a state can,

at its discretion, admit or exclude illegally

obtained evidence in revocation proceedings.

Although the Supreme Court deemed the

deterrent effect of the admissibility of illegally obtained evidence minimal in a revocation proceeding, there are certain situations

under which this assumption could be questioned. For example, state prosecutors may

decline to try a parolee in a criminal action

if they believe that certain critical evidence

may not be admissible but, instead, forgo

prosecuting the parolee for the new offense

and seek to have the evidence used in a revocation proceeding. Moreover, the Court in

Scott did not address the question concerning

a violation of a parolee’s fifth amendment

rights, i.e., whether a confession obtained by

force or coercion could still be admissible in

a revocation proceeding. Finally, despite this

holding, certain states may create their own

state exclusionary rules and restrict the admissibility of illegally obtained evidence in a

parole or probation revocation proceeding.

B. Equal Protection and

Revocation: The Case of

Bearden v. Georgia

In Bearden,

60 the petitioner pleaded guilty in

a Georgia trial court to burglary and theft

by receiving stolen property. The court did

not enter a judgment of guilt; instead, in

accordance with Georgia law, the court sentenced the petitioner to probation on condition that he pay a $500 fine and $250 in

restitution, with $100 payable that day,

$100 the next day, and the $550 balance

within 4 months. The probationer borrowed

money and paid the first $200, but a month

later he was laid off from work, and despite

repeated effort, was unable to find other work.

Shortly before the $550 balance became due,

he notified the probation office that his payment was going to be late. Thereafter, the

State filed a petition to revoke probation

because the probationer had not paid the

balance. The trial court, after a hearing,

revoked probation, entered a conviction,

and sentenced the probationer to prison.

The record of the hearing disclosed that

the probationer had been unable to find

employment and had no assets or income.

On appeal, the United States Supreme

Court held that a sentencing court cannot

properly revoke a defendant’s probation for

failure to pay a fine and make restitution,

absent evidence and findings that he was

somehow responsible for the failure or that

alternative forms of punishment were inadequate to meet the State’s interest in punishment and deterrence. Said the Court:

Over a quarter-century ago, Justice

Black declared, “there can be no equal

justice where the kind of trial a man

gets depends on the amount of money

he has. . . . There is no doubt that the

State has treated the petitioner differently from a person who did not fail to

pay the imposed fine and therefore did

not violate probation. To determine

whether this differential treatment violates the Equal Protection clause, one

must determine whether and under

what circumstances, a defendant’s indigent status may be considered in the

decision whether to revoke probation.

The Bearden decision is consistent with

Williams v. Illinois,

61 where the Court said

that a State cannot subject a certain class of

convicted defendants to a period of imprisonment beyond the statutory maximum solely because they are too poor to pay the fine.

In many jurisdictions, however, indigence
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REVOCATION

(or inability to pay) is an affirmative defense

to a revocation petition for failure to pay

monetary obligations—hence avoiding a

constitutional challenge similar to Bearden.

The burden of proving indigence is usually

with the probationer (or parolee). In jurisdictions that do not provide for indigence as a

bar to revocation, the Bearden case becomes

important as a defense to incarceration. It is

evident from Bearden, however, that a distinction must be made between failures to

pay because of indigence, thus foreclosing

revocation, and refusal to pay, where revocation or a possible contempt proceeding is a

valid option for the Court to take.

C. Interrogations and Miranda:

Cases Prior to Minnesota v.

Murphy

When the evidence a defendant seeks to

exclude from a criminal trial is his own

statement, the outcome is governed by

Miranda v. Arizona.

62 That case holds that

any statement made during custodial interrogation conducted in violation of Miranda

rules is inadmissible. Miranda requires that

the following warnings be given:

■ The suspect has a right to remain silent.

■ Any statement made may be used against

the suspect in court. 

■ The suspect has a right to the presence

of an attorney before and during any

questioning.

■ If the suspect cannot afford to hire an

attorney, one will be provided by the state.

■ Interrogation will be terminated any time

the suspect desires.

The Miranda decision affects only the

admissibility of evidence at trial. It does not

directly apply to probation or parole revocation, but circumstances frequently arise

where the investigation indicates the occurrence of a new offense. When this occurs,

the officer must be careful not to cross the

line between supervision—his or her proper

role—and serving as agent for law enforcement authorities to ferret out information

of a crime. If the line is crossed, and perhaps

even if it is approached closely, Miranda

warnings should be given.

In cases of doubt, the probation/parole officer might well ask him or herself whether

the circumstances amount to custodial interrogation. An affirmative answer will indicate

that the officer is involved in an investigation of some act or circumstance that might

be construed as being of an independent

nature—that is, separate from the supervision

function. Moreover, if the officer formulates

the intent to refuse to allow a probationer

or parolee to leave until he or she completes

any investigative inquiries, then this may

constitute custodial interrogation. 

The courts consider whether the suspect was

“deprived of freedom of action in any significant way” in determining if questioning is

custodial in nature. The defendant need not

have been in actual custody. The suspect

need only have held a reasonable belief that

he or she was deprived of freedom in any

significant way. 

It could be argued that a parolee is always

in custody; however, the Supreme Court

ruled against this view. In an Oregon case,

a parolee was asked by his parole officer to

meet to discuss a burglary. They met at a

police station as a convenient place and the

suspect confessed. The Court held this was

not a custodial interrogation, as he was in

fact free to leave.63

If the parolee is in custody on a new charge,

the officer is required to give the Miranda

warnings.64 What actually constitutes custodial

interrogation is determined on a case-by-case

basis, and jurisdictions vary considerably as

to what is construed as custodial. A Kansas

case held that when a parole officer went

with the police to the parolee’s home, took

the parolee to the parole office, and questioned him there, the interrogation was
154

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

custodial.65 The court suggested that any

questioning by the parole officer related to

a new offense requires Miranda warnings.

However, the Oregon case referred to above

holds otherwise.

Courts have held the following not to be

custodial interrogations, obviating the need

for Miranda warnings: 

1. Where questioning by a parole officer

occurred during a ride to the parole office

and at the office, but the investigation

had not yet become accusatorial. Once

the parole officer has probable cause to

make an arrest, Miranda must be given

effect.66

2. Where a parolee was confined at a state

hospital and confessed to a crime on his

own initiative. The court mentioned as

significant the facts that the parolee was

not handcuffed and was free to leave the

interviewing area, and third parties were

present in the interviewing area.67

3. In a New York case, although the probationer was not free to leave the interviewing room, Miranda was not applied, as the

coerciveness involved did not exceed that

inherent in the probation or parole relationship. (Often the client has agreed to

answer questions as part of the release

agreement.)68

D. Interrogations and Miranda:

The Effect of Minnesota v.

Murphy* 

In 1984, the United States Supreme Court

decided Minnesota v. Murphy 69 (also discussed in Chapter 8, Supervision), which

gives some answers as to whether or not evidence obtained by a probation officer may

be admissible in evidence in the absence of

the Miranda warnings. In that case, Murphy

pleaded guilty to a sex-related charge and

was given a suspended sentence and placed

on probation. The terms of probation

required him to participate in a treatment

program for sexual offenders, to report to

his probation officer periodically, and to be

truthful with the officer “in all matters.”

During the course of a meeting with his probation officer, who had previously received

information from a treatment counselor that

the probationer had admitted to a 1974 rape

and murder, Murphy, upon questioning,

admitted that he had committed the rape

and murder. 

After being indicted for first-degree murder,

Murphy sought to suppress the confession

made to the probation officer on the ground

that it was obtained in violation of the 5th

and 14th amendments. The case went to the

United States Supreme Court. The Court

held that the 5th and 14th amendments did

not prohibit the introduction into evidence

of the probationer’s admissions to the probation officer in the subsequent murder prosecution. In general, the obligation to appear

before his probation officer and answer questions truthfully did not in itself convert an

otherwise voluntary statement into a compelled one. A witness confronted with questions that the government should reasonably

expect to elicit incriminating evidence ordinarily must assert the fifth amendment privilege rather than answer if he desires not to

incriminate himself. If he chooses to answer

rather than assert the privilege, his choice is

considered to be voluntary since he was free

to claim the privilege.

A number of questions arise from Murphy.

For example, if the probationer had objected

to answering the questions asked by the probation officer, but had been forced to do so,

would the evidence have been admissible?

The answer appears to be in the negative.

When is a probationer considered to be in

custody such that the Miranda warnings

must be given if the evidence is to be used

*For a further discussion of Minnesota v. Murphy, see Chapter 7, Conditions, Modifications, and 

Changes in Status, section II.G, Self-Incrimination.
155

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REVOCATION

in a criminal trial? The Court does not

answer that in Murphy, other than saying

that “it is clear that respondent was not ‘in

custody’ for purposes of receiving Miranda

protection since there was no formal arrest

or restraint on freedom of movement of the

degree associated with formal arrest.” Does

the holding in Murphy extend to parole cases?

This was not decided by the Court, but there

are reasons to believe that it should.

The effect of the Murphy decision may be

summarized as shown in table 9–1.

E. Due Process and Probation

Revocation: The Case of Black v.

Romano

In Black v. Romano,

70 the Supreme Court

addressed the issue concerning whether the

United States Constitution requires a judge

to consider alternatives to incarceration

before revoking probation. In that case, a

certain Nicholas Romano pleaded guilty in

a Missouri state court to several controlled

substance offenses, was placed on probation,

and given suspended prison sentences. Two

months later, he was arrested for and subsequently charged with leaving the scene of

an automobile accident, a felony under

Missouri law. After a hearing, the judge

who had sentenced the defendant revoked

his probation and ordered the execution of

the previously imposed sentences. Romano

filed a habeas corpus petition in Federal

District Court alleging that the state judge

had violated due process requirements by

revoking probation without considering

alternatives to incarceration. The District

Court agreed and ordered Romano released

from custody. The Court of Appeals affirmed

that decision. On appeal, the Supreme Court

held that the due process clause of the 14th

amendment does not generally require a sentencing court to indicate that it has considered

alternatives to incarceration before revoking

probation. The procedures for revocation of

probation, first laid out in Morrissey v. Brewer

and then applied to probation cases in Gagnon

v. Scarpelli, do not include an express statement by the fact finder that alternatives to

incarceration were considered and rejected.

The Court reiterated that the procedures

specified in Morrissey adequately protect the

probationer against revocation of probation

in a constitutionally unfair manner.

Addressing specific facts in the case, the

Court went on to say that the procedures

required by the due process clause were

afforded in this case, even though the state

judge did not explain on the record his consideration and rejection of alternatives to

incarceration. The revocation of probation

did not violate due process simply because

the offense of leaving the scene of an accident was unrelated to the offense for which

the defendant was previously convicted or

because, after the revocation proceeding,

the charges arising from the automobile accident were reduced to the misdemeanor of

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.
156

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

reckless and careless driving. The Romano

case, therefore, reiterates that Morrissey is

still the yardstick by which revocation due

process challenges are measured. However,

the Court has shown an unwillingness to

expand the meaning of due process beyond

that laid out in Morrissey.

■■■

VI. CASES ON 

LIABILITY FOR 

REVOCATION

I

n Hall v. Schaeffer,

71 a federal district court

ruled on a civil rights action brought by a

former probationer against a probation officer. 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, therefore, entitled to quasi-judicial immunity.

In another case, the United States Fifth

Circuit Court of Appeals72 examined a civil

rights suit against a probation officer who

mistakenly caused the arrest of a plaintiff

probationer due to the erroneous assumption that a person with the same name as

the plaintiff was, in fact, the plaintiff. The

court found the officer could be subjected to

suit only where his conduct clearly violated

an established statutory or constitutional

right of which a reasonable person would

have known. The rationale offered for this

standard was a clear need to vindicate constitutional guarantees without dampening

the ardor of public officials and the discharge

of their duties. Specifically, the court ruled

that the officer was not performing an adjudicatory function and was not entitled to

judicially derived immunity.

However, in the same year,73 the United

States Ninth Circuit Court of Appeals heard

a suit brought by a plaintiff claiming repeated arrests and consequent nonbail parole

holds pending investigation of baseless

charges of parole violations. This court

found the decision to arrest directly related

to the decision to revoke parole and, therefore, was protected by absolute immunity.

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.

Although the court found no liability, that

decision appears to be the result of a provision in Section 1983 of 42 U.S. Code that

limits a proper defendant to a “person.” The

defendant in this case was the parole board

and not a “person.” Thus, the question of

liability under the facts in this case has yet

to be unequivocally resolved by a court. 

■■■

VII. EXTRADITION 

I

n this mobile society, a parolee or probationer is often wanted by the authorities

of one state while he or she is physically present in another state. The process for retrieving a person from another state is known

as extradition. The outline of the process

is found in the Constitution, which states:

A person charged in any state with

treason, felony, or other crime, who

shall flee from justice, and be found in

another state, shall on demand of the

executive authority of the state from

which he fled, be delivered up, to be

removed to the state having jurisdiction of the crime.

Questions have arisen over the years concerning this process. These include the circumstances under which extradition may be

refused, the behavior that makes one a fugitive from justice, and the authority of federal

courts to require extradition. The only issue

addressed here, probably the only one in which

probation/parole officers are involved, is the
157

CHAPTER

9

REVOCATION

adequacy of the papers and documentation

on which the extradition demand is based.

Exactly what documentary evidence must be

assembled to support a governor’s request to

extradite a suspected violator varies considerably from state to state. Colorado does not

require a certificate of judgment, conviction,

and the sentence imposed; a certified record

of the defendant’s plea, suspended sentence,

and probation is sufficient.75 The same logic

might be applied to parole, but it seems

likely that at least a judgment of conviction

would be required. In another Colorado case,

it was held that a judgment of conviction

and a statement from the governor that the

person violated the terms of his probation

were sufficient.76 New Hampshire allowed

the court to infer a probable probation violation, even though it was omitted from the

extradition papers, because the conditions

of probation included that the defendant not

leave the state without permission.77 Thus,

probation/parole officers should consult with

departmental legal counsel whenever a question involving the necessary documentation

required for successful extradition arises.

At various times since 1934,78 multistate

agreements or compacts have been proposed

that contain detailed procedures for moving

offenders from one state to another. These

include the “Agreement on Detainers” and

the “Uniform Rendition of Prisoners as

Witnesses in Criminal Proceedings Act.”

When these or other compacts apply, they

may simplify the process. Readers should

determine from local authorities whether a

particular compact is relevant, whether the

rendering and demanding state are parties

to the compact, and what procedures must

be followed.

A simplified version of extradition is provided

by the Interstate Compact, which provides

for the courtesy supervision of parolees and

probationers when residing out of state. The

Interstate Compact applies only to states that

are parties to the agreement.79 It establishes

the eligibility criteria for one state having

to provide courtesy supervision of a probationer or parolee convicted in another state.

Although a receiving state is not precluded

under the Interstate Compact from accepting courtesy supervision of any probationer

or parolee, if the probationer or parolee does

not meet the eligibility criteria established

in the compact, then the state can refuse to

accept courtesy supervision and the offender

must remain in the state of conviction. 

If a receiving state becomes dissatisfied with

a probationer or parolee for whom it is providing courtesy supervision, then that state

can request that the sending state resume

custody of the offender. Moreover, since an

interstate compact carries the weight of federal law, an officer who violates the compact

may incur federal liability.80 Nevertheless,

where the probationer or parolee is found

in a third state and is not supervised there

under the Interstate Compact, then formal

extradition is required. Finally, probationers

or parolees often validly waive extradition

procedures and permit informal retaking.

■■■

SUMMARY

This chapter examines legal issues related

to revocation, focusing primarily on

the due process guarantees that the Supreme

Court has established for revocation proceedings. The procedural due process rights

set forth in Morrissey and clarified a year

later in Gagnon remain the law of the land.

Morrissey mandates a two-stage process consisting of a preliminary hearing and a final

hearing. The preliminary hearing can be dispensed with under certain circumstances.

Gagnon states that the due process guarantees established in Morrissey for parole revocation proceedings are equally applicable to

probation revocation proceedings. However,

Gagnon adds that the right to appointed

counsel in revocation proceedings must be

made on a case-by-case basis.
158CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

Morrissey raised a host of legal issues that

were left unaddressed in that case. Among

these are preliminary hearing issues (including location, promptness, form of notice,

and impartial hearing officer); revocation

hearing issues (including notice of hearing,

disclosure of evidence, and confrontation

and cross-examination); and hearsay admissibility. Other issues related to revocation proceedings that are discussed in this chapter are

standard of proof, nature of proof required,

limitations on testimony, and the exclusionary rule as applied to probation/parole cases.

Despite the continuing viability of Morrissey

and Gagnon as precedents, the Supreme Court

has refused to extend greater due process guarantees in revocation proceedings than enunciated in these two cases.

The application of the Miranda decision

is addressed in accordance with the 1984

Supreme Court decision of Minnesota v.

Murphy. Whether the Miranda warnings

must be given depends on the nature of the

questioning. If it is a custodial interrogation, Miranda does apply if the evidence

is to be used in a subsequent criminal trial.

Moreover, its admissibility for use in a 

subsequent probation or parole revocation

proceeding is determined by state law or

judicial decisions. Some states require that

the Miranda warnings must be given for the

evidence to be admissible; others do not. 

In Black v. Romano, the Court refused to

expand the due process guarantees in Morrissey

,

saying that the due process clause does not

generally require a sentencing court to indicate that it has considered alternatives to

incarceration before revoking probation. In

Bearden v. Georgia, the Supreme Court stated

that probation cannot be revoked for failure

to pay a fine or fees solely on the ground

that the probationer was indigent and did

not have the financial ability to pay the fine

or fee. Finally, in Pennsylvania Board of

Probation and Parole v. Scott, the Supreme

Court held that the exclusionary rule does

not apply in revocation proceedings.

The rules on extradition vary considerably

from state to state; hence, probation/parole

officers are advised to consult their legal

counsel whenever questions concerning

extradition documentation arise. This chapter also examines the Interstate Compact for

Probationers and Parolees and discusses the

provision of courtesy supervision for probationers and parolees convicted in one state

but residing in another.

Notes

1. See www.ojp.usdoj.gov/bjs/pub/press/ppus98.pr.

2. Morrissey v. Brewer, 408 U.S. 471 (1972).

3. Gagnon v. Scarpelli, 411 U.S. 778 (1973).

4. Morrissey v. Brewer, 408 U.S. at 480.

5. Id. at 482.

6. Id. at 485.

7. Id. at 488.

8. Id. at 488-489.

9. Gagnon v. Scarpelli, 411 U.S. 778 (1973).

10. Kartman v. Parratt, 535 F.2d 450 (8th Cir.

1976). Read closely, Gagnon requires counsel at

the preliminary hearing as well as the final hearing in most instances. See, e.g., Van Ermen v.

Percy, 489 F. Supp. 791 (E.D. Wis. 1980);

Cresci v. Schmidt, 419 F. Supp. 1279 (E.D. Wis.

1976); Kemp v. Spradlin, 250 Ga. 829, 301

S.E.2d 874 (1983).

11. McLucas v. Oswald, 40 A.D.2d 311, 339

N.Y.S.2d 760 (1973).

12. In re La Croix, 32 Cal. App. 3d 319, 108

Cal. Rptr. 93 (1973).

13. State v. Settle, 20 Ariz. App. 283, 512 P.2d

46 (1973).

14. Moody v. Daggett, 429 U.S. 78 (1976).
159

CHAPTER

9

REVOCATION

15. People v. Hardenbrook, 68 Mich. App. 640,

243 N.W.2d 705 (1976).

16. Vincent v. State, 586 S.W.2d 880 (Tex.

Crim. App. 1979), appeal dismissed, 449 U.S.

119 (1980).

17. United States v. Pattman, 535 F.2d 1062

(8th Cir. 1976).

18. See United States v. Havier, ____ F.3d ____

(9th Cir. 1997) No. 97-10500, decided

September 9, 1998, in which Ninth Circuit

Court of Appeals, in interpreting federal rules

of criminal procedure that incorporated the

Supreme Court’s holding in Morrissey, held that

when a revocation petition alleges the commission of a new crime and the offense being charged

is not evident from the condition of probation

being violated, then a defendant is entitled to

receive notice of the specific statute he is charged

with violating.

19. In re Ricks, 31 Cal. App. 3d 1006, 107 Cal.

Rptr. 786 (1973); People ex rel. Warren v.

Mancusi, 40 A.2d 279, 339 N.Y.S.2d 882

(1973); Parker v. Coldwell, 320 Ohio App. 2d

193, 289 N.E.2d 382 (1972); Ex parte Ates, 487

S.W.2d 353 (Tex. Crim. App. 1972).

20. State v. Hass, 264 N.W.2d 464 (N.D. 1978).

21. State v. Nangesser, 269 N.W.2d 449 (Iowa

1978).

22. Abel v. Wyrick, 574 S.W.2d 411 (Mo. 1978).

23. V. O’Leary and K. Hanrahan, Parole Systems

in the United States, 57 (3d ed. 1976).

24. Augello v. Warden, Met. Corr. Ctr., 470 F.

Supp. 1230 (E.D.N.Y. 1979).

25. Reeves v. State, 366 So. 2d 1229 (Fla. Dist.

Ct. App. 1979).

26. Kaufman v. Henderson, 64 A.D.2d 849,

407 N.Y.S.2d 340 (1978). See, e.g., U.S. v.

McCallum, 677 F.2d 1024 (4th Cir. 1982); State

ex rel. Thompson v. Riveland, 109 Wis. 2d 580,

326 N.W.2d 768 (1982); State v. Virgil, 97 N.M.

749, 643 P.2d 618 (Cr. App. 1982); Jones v.

State, 423 So. 2d 513 (Fla. Dist. Ct. App. 1982).

27. For example, State v. Fraley, 258 S.E.2d 129

(W. Va. 1979).

28. People v. Thomas, 42 Colo. App. 441, 599

P.2d 957 (1979).

29. Commonwealth v. Maye, 411 A.2d 783 

(Pa. Super. Ct. 1979).

30. Reeves v. State, 366 So. 2d 1229 (Fla. Dist.

Ct. App. 1979).

31. State v. Fowler, 37 Or. App. 299, 587 P.2d

104 (1978).

32. Meyer v. State, 596 P.2d 1270 (Okla. Crim.

App. 1979).

33. State v. Sussman, 374 So. 2d 1256 (La. 1979).

34. Jones v. Commonwealth, 47 Pa. Commw.

Ct. 438, 408 A.2d 156 (1979).

35. Gagnon v. Scarpelli, 411 U.S. 778 (1973).

36. See Gideon v. Wainwright, 372 U.S. 335

(1963) and Argersinger v. Hamlin, 407 U.S. 25

(1972).

37. Williams v. Johnson, ____ 3d ____ (5th Cir.

1999) No. 97-11116, decided March 29, 1999.

38. John v. United States Parole Commission

____ F.3d ____ (9th Cir. 1997) No. 96-16418,

decided September 10, 1997.

39. Moody v. Daggett, 429 U.S. 78 (1976). See

also, Roberts v. Champion, ____ F.3d ____,

(10th Cir. 1997) No. 97-5096.

40. Ellis et al. v. District of Columbia et al.,

____ F.3d ____ (C.A.D.C., 1996) nos. 95-7090

and 95-7109, decided May 28, 1996.

41. Dickerson v. State, 136 Ga. App. 885, 222

S.E.2d 649 (1975).
160CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

42. Cooper v. State, 599 P.2d 419 (Okla. Crim.

App. 1979).

43. People v. Felton, 69 Ill. App. 3d 684, 387

N.E.2d 1094 (1079).

44. State v. Varnado, 384 So. 2d 440 (La. 1980).

See also, State v. McGlothin, 427 So. 2d 280

(Fla. Dist. Ct. App. 1983).

45. Kish v. Florida Parole and Prob. Comm.,

369 So. 2d 87 (Dist. Ct. App. 1979). But see,

e.g., Strickland v. State, 649 S.W.2d 817

(Tex. Crim. App. 1983).

46. Herrington v. State, 534 S.W.2d 311

(Tex. Crim. App. 1976).

47. Meyer v. State, 596 P.2d 1270 (Okla. Crim.

App. 1979).

48. State v. Dement, 42 N.C. App. 254, 255

S.E.2d 793 (1979).

49. Gilbert v. State, 150 Ga. App. 339, 258

S.E.2d 27 (1979).

50. State v. Winters, 40 Or. App. 9, 605 P.2d

293 (1980).

51. Harris v. New York, 401 U.S. 222 (1971).

52. State v. Grimmer, 251 S.E.2d 780 (W. Va.

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

273 S.E.2d 346 (W. Va. 1980).

53. People ex rel. Thiel v. Dillon, 70 A.D.2d

778, 417 N.Y.S.2d 534 (1979).

54. Bennett v. Bogan, ___ F.3d ___ (6th Cir.

1995) No. 94-1931, decided October 5, 1995.

55. Pennsylvania Board of Probation and Parole

v. Scott, 524 U.S. 357 (1998).

56. Bearden v. Georgia, 461 U.S. 660 (1983).

57. Minnesota v. Murphy, 104 S. Ct. 1136

(1984).

58. Black v. Romano, 471 U.S. 606 (1985).

59. Pennsylvania Board of Probation and Parole

v. Scott, 524 U.S. 357 (1998).

60. Bearden v. Georgia, 461 U.S. 660 (1983).

61. Williams v. Illinois, 399 U.S. 235 (1970).

62. Miranda v. Arizona, 384 U.S. 436 (1966).

63. Oregon v. Matheason, 429 U.S. 492 (1977).

64. State v. Davis, 67 N.J. 222, 337 A.2d 33

(1975).

65. State v. Lekas, 201 Kan. 579, 442 P.2d 11

(1968).

66. In re Richard T., 79 Cal. App. 3d 382, 144

Cal. Rptr. 856 (1978).

67. People v. Lipsky, 102 Misc. 2d 19, 423

N.Y.S. 599 (Monroe Co. Ct. 1979).

68. People v. Ronald W., 24 N.Y.2d 732, 249

N.E.2d 882, 302 N.Y.S.2d 260 (1969).

69. Minnesota v. Murphy, 104 S. Ct. 1136

(1984).

70. Black v. Romano, 471 U.S. 606 (1985).

71. Hall v. Schaeffer, 556 F. Supp. 539 (U.S.D.

Pa. 1983).

72. Galvan v. Garmon, 710 F.2d 214 (5th Cir.

1983).

73. Anderson v. Boyd, 714 F.2d 906 (9th Cir.

1983).

74. Jones v. Eagleville Hospital and Rehabilitation

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

75. Miller v. Cronin, 197 Colo. 391, 593 P.2d

706 (1979).

76. Morgan v. Miller, 197 Colo. 341, 593 P.2d

357 (1979).

77. Martel v. Knight, 119 N.H. 190, 400 A.2d

478 (1979).
161

CHAPTER

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REVOCATION

78. In that year, Congress enacted 4 U.S.C.

Section 112, which provides that the consent of

Congress is hereby given to any two or more

states to enter into agreements or compacts for

cooperative effort and mutual assistance in the

prevention of crime and in the enforcement of

their respective criminal laws and policies, and to

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.

80. See Cuyler v. Adams, 101 S. Ct. 703 (1981),

in which the United States Supreme Court stated

that an inmate held pursuant to an interstate

agreement on detainers could make a claim for

relief under 42 U.S.C. Section 1983 for an

alleged violation by state officials of the terms of

the detainer agreement.

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

CHAPTER 10
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
165

CHAPTER

10

LIABILITIES OF

SUPERVISORS

INTRODUCTION

I

n simplest terms, a supervisor is a person

who has somebody working for or with

him or her in a subordinate capacity. At the

apex of the supervisory hierarchy are the

administrators who have ultimate responsibility for the operation and management of

an agency. The term “supervisor” is used in

this discussion generally to include probation/parole administrators, chiefs, heads,

or directors.

Although lawsuits against officers are directed

mainly at field personnel, including probation or parole officers, plaintiffs are inclined

to include supervisory officials and the agency

as parties-defendants, based on the theory that

the officer acts for the agency and, therefore,

what the officer does reflects agency policy

and practice. As a matter of legal strategy, it

benefits plaintiffs to include supervisors and

agencies in a liability lawsuit. Lower level officers may not have the financial resources to

satisfy a judgment, nor are they in a position

to prevent similar future violations by other

officers or the agency. Moreover, chances of

financial recovery are enhanced if supervisory

personnel, by virtue of their position, are

included in the lawsuit. The higher the position of the employee, the closer the plaintiff

gets to the deep pocket of the county or state

agency. Inclusion of the supervisor and agency

may also create disagreement in the legal

strategy of the defense, based on a conflict

of interest, hence strengthening the plaintiff’s

claim against one or some of the defendants.

In Brandon v. Holt,

2 a 1985 decision, the

United States Supreme Court ruled that a

money judgment against a public officer “in

his or her official capacity” imposes liability

upon the public entity that employs him or

her, regardless of whether or not the agency

was named as a defendant in the suit. In this

case, the plaintiff alleged that although the

director of the police department had no

actual notice of the police officer’s violent

behavior, because of administrative policies,

the director should have known. The Court

said that although the director could be

shielded with qualified immunity, the city

could be held liable. Speaking in dissent,

Justice Rehnquist opined that the Court’s

opinion supports the preposition that in

suing a public official under Section 1983

of 42 U.S. Code, a money judgment against

the public official “in his or her official

capacity” is collectible against the public that

employs the official. In Retenauer v. Flaherty,

3

a 1994 decision, Pennsylvania Judge James

R. Kelley quotes from the Brandon case to

clarify the issue: 

[T]he issue before the court was whether

the judgment was payable by the City

of Memphis or whether the Police

Director was individually liable. The

court held that the City of Memphis

was responsible for the judgment, but

cautioned: 

In at least three recent cases arising

under § 1983, we have plainly

implied that a judgment against a

public servant “in his or her official

capacity” imposes liability on the

entity that he represents provided,

of course, the public entity received

notice and an opportunity to

respond. We now make that point

explicit.

In Retenauer, the city of Pittsburgh

was not named as a party, notified

of involvement, nor given the

opportunity to participate in settlement negotiations with the plaintiff.

Therefore, it was exonerated from

all liability in the case.
166

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

I. CATEGORIES

OF SUPERVISORY

LAWSUITS

Lawsuits may be categorized in various

ways, each with varying implications.

First, they may be brought under state or

federal laws, or under both. Most cases are

in fact brought under tort law (state courts)

and Section 1983 of 42 U.S. Code (Federal

courts). Both are civil cases and enjoy advantages in terms of a lower quantum of proof

needed to win (compared with criminal cases)

and probable financial benefit in the form

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

results in a consent decree.

Second, liability lawsuits may be classified as

coming from two possible sources (i.e., from

clients, such as probationers, parolees, or the

general public, and from subordinates or

employees). In either case, the usual allegation is that the supervisor is liable for injury

caused by action or inaction. While most

cases filed thus far stem from clients’ liability

claims, an increasing number of cases have

arisen from subordinates for acts done or

injuries suffered in the course of employment that could have been obviated had the

supervisor performed his or her job properly.

Third, supervisory liability cases may be classified into direct liability and vicarious liability. Direct liability means that a supervisor is

held liable for what he or she does, whereas

vicarious liability holds a supervisor liable

for what his or her subordinates do. This is

based on the theory that the officer acts for

the agency and, therefore, what he or she does

is reflective of agency policy and practice.4

Fourth, liability lawsuits may be filed against

the supervisor as a private individual or in

his or her capacity as a public officer.

Liability as a private individual arises when

the supervisor acts on his or her own and

outside the scope of duty. In these cases, the

agency will not undertake his or her defense

or pay for damages if held liable. The initial

determination whether that officer acted

within the scope of duty is made by the

agency. Unless provided otherwise by statute

or agency regulation, such determination

is not appealable to any court or higher

administrative agency. Most lawsuits, however, are brought against a supervisor in his

or her official capacity, regardless of the

nature of the act. Plaintiffs prefer to hold

both the officer and the agency liable so as

to broaden the financial base for recovery.

■■■

II. LIABILITIES

OF SUPERVISORS

FOR WHAT THEIR

SUBORDINATES

DO (VICARIOUS

LIABILITY)

Vicarious or indirect liability stemming

from negligence of a supervisor is one of

the most frequently litigated areas of liability

and, therefore, merits extended discussion.

Most decided cases in the area of supervisor

liability are police or prison cases, but their

principles should be applied to probation

and parole supervisors as well. It must be

noted that most decided cases require “deliberate indifference” (a higher level of blame)

for a supervisor to be liable. Simple negligence will not establish liability.

A. Negligent Failure to Train

This has generated a spate of lawsuits in the

law enforcement and corrections areas of

criminal justice. As early as 1955, a state court

entertained tort actions for monetary damages resulting from improper or negligent
167

CHAPTER

10

LIABILITIES OF

SUPERVISORS

training.5 The usual allegation in these cases

is that the employee has not been instructed

or trained by the supervisor or agency to a

point at which he or she possesses sufficient

skills, knowledge, or activities required of

him in the job. The rule is that administrative agencies and supervisors have a duty to

train employees and that failure to discharge

this obligation subjects the supervisor and

the agency to liability if it can be proven

that such violation was the result of failure

to train or improper training.6

Although no cases decided thus far involve

probation and parole, some cases have mandated jail and prison administrators to train

their staffs or improve their training programs.

In Owens v. Haas,

7 the plaintiff argued that

lack of training for personnel in the local jail

resulted in the violation of his or her constitutional rights stemming from the use of

force against him. The Second Circuit held

that while a county may not be liable for

mere failure to train employees, it could be

liable if its failure was so severe as to reach

the level of gross negligence or deliberate

indifference. The court added that a municipality is fairly considered to have actual or

imputed knowledge of the foreseeable consequences that could arise from nonexistent

or grossly inadequate training.

In McClelland v. Facteau,

8 the Tenth Circuit

held that a police chief might be held liable

for civil rights violations for failure to train

or supervise employees who commit an

unconstitutional act. The plaintiff was

booked by the New Mexico State Police at a

local jail facility, and while there beaten by

the officers as well as denied use of the telephone and access to an attorney. In holding

the officers liable, the court said that in

order for liability to attach, there must be a

breach of an affirmative duty owed to the

plaintiff, and the action must be the proximate cause of the injury. In this case, it was

well known that instances of constitutional

violations were occurring in the department

because they had been thoroughly aired by

the press. Additionally, the jail itself was

under lawsuit in two instances of wrongful

death. Similarly, in Rock v. McCoy,

9 a 1985

decision, when Mr. Rock approached a

police officer to inquire whether the officer

wanted to speak with him, a brawl quickly

turned into a severe beating by law enforcement. Although the city had no policy or

custom of beating citizens or suspects, the

city was held liable because adequate training would have eliminated the grossly negligent officers’ actions.

The question arises: Will a single act by

a subordinate suffice to establish liability

under failure to train? Most cases hold that

a pattern must be proven and established.

The Owens case indicates a single brutal incident may be sufficient to constitute a link

between failure to train and violation. Owens

considered solely the degree of violation to

determine liability instead of waiting for a

pattern to develop based on a series of violations. The United States Supreme Court has

answered this question in the negative. In

1985, the Court ruled that an isolated act

of police misconduct could not ordinarily

make a city subject to a damage suit for violating an individual’s civil rights.10 This decision was reiterated in 1997 when the Court,

in Board of County Commissioners of Bryan

County, Oklahoma v. Brown, held that a single

hiring decision made by a county official

was not enough to hold the county liable.11

In another case, Oklahoma City v. Tuttle, the

Court overturned a $1.5 million damage

award against Oklahoma City, won by the

widow of a man whom an Oklahoma City

officer had shot to death in the process of

investigating a reported robbery. The plaintiff in this case argued that the city’s inadequate training of its police force constituted

an official “policy” for which the city should

be held liable. The Court of Appeals for the

Tenth Circuit accepted the plaintiff’s theory

and ruled that the officer’s action was so

plainly and grossly negligent as to provide

the necessary link between the policy and

the injury. The United States Supreme

Court reversed that decision. Writing for

four of the seven justices in the majority,
168CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

Justice Rehnquist said that the notion of

inadequate training as a policy was too nebulous and remote from the charge of unconstitutional deprivation of life as to form a

basis for municipal liability. He added that a

single incident could give rise to municipal

liability only if the incident was actually

caused by an existing, unconstitutional

municipal policy, which can be attributed to

a policymaker. But where the policy relied

upon is not itself unconstitutional, considerably more proof than a single incident will

be necessary in every case to establish both

the requisite fault on the part of the municipality and the causal connection between the

policy and the constitutional deprivation. 

In City of Canton v. Harris

,

12 decided in 1989,

the Court held “deliberate indifference” was

the standard to be used on the issue of municipal liability for inadequate training. In 1998,13

the United States Court of Appeals for the

Sixth Circuit held that to be held liable for

supervisor liability, the administrator must

display deliberate indifference in his or her

inaction toward the situation.

Lawsuits against supervisors and agencies for

failure to train come from two sources (i.e., a

client whose rights have been violated by an

officer who has not been properly trained,

and a subordinate who suffers injury in the

course of duty because he or she was not

trained adequately). The obvious defense in

these cases is proper training, but training

may in fact be deficient due to circumstances

beyond a supervisor’s control, such as lack

of funds and a dearth of expertise. 

Will the supervisor be liable if no resources

have been allocated to provide the desired

level of training? Budgetary constraints

generally have not been considered a valid

defense14 by the courts and, therefore, place

the supervisor in a difficult position. With

proper documentation, however, the supervisor should be able to establish good faith

if he or she repeatedly calls the attention of

those who hold the purse strings to the need

for training. Even if financial resources are

available, unstructured training alone may not

be sufficient. The nature, scope, and quality

of the training program must be properly

documented and its relevance to job performance identified. There is a need to document

training sessions with detailed outlines to

substantiate course content. Attendance

sheets are necessary for defense purposes in

lawsuits brought by one’s own subordinates.

B. Negligent Hiring 

Negligent hiring stresses the importance

of proper background investigation before

employing anyone to perform a job.

Liability ensues when an employee is unfit

for appointment, when this unfitness was

known to the employer or when the employer should have known about it through the

background investigation, and when the act

is foreseeable.15 In one case,16 the department

hired a police officer despite a record of preemployment assault conviction, a negative

recommendation from a previous employer,

and a falsified police application. The officer

later assaulted a number of individuals in

separate incidents. He and the supervisor

were sued and held liable. In another case,17

the court held a city liable for the actions

of a police officer who was hired despite a

felony record and who appeared to have been

involved in many street brawls. Liability was

based on the complete failure of the agency

to conduct a background check before hiring

the applicant.

In a 1997 case, Board of County Commissioners

of Bryan County, Oklahoma v. Brown

,

18 the

United States Supreme Court held that a

county cannot be held liable under Section

1983 for a single hiring decision made by a

county official. In Brown, the plaintiff and

her husband approached a police checkpoint

and then turned around to avoid it. Two

deputies pursued the vehicle for more than

4 miles at speeds in excess of 100 miles an

hour. When the vehicle stopped, one of the

deputies pointed his gun at the truck and

ordered the occupants to raise their hands.

The other deputy went to the passenger side
169

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of the truck and ordered Brown out of the

vehicle. When Brown did not respond after

the second request, the deputy pulled her

from the truck by the arm and swung her to

the ground. The fall caused severe injuries

to Brown’s knees, possibly requiring knee

replacement. Brown sued the deputy, the

county sheriff, and the county for injuries

under Section 1983, claiming that the sheriff

failed to adequately review the deputy’s background. The deputy did in fact have a history

of misdemeanor offenses, including assault

and battery, resisting arrest, driving while

intoxicated, and public drunkenness prior

to his hiring. The sheriff knew this and yet

hired him. After some legal maneuvering, the

sole issue presented to the Court was: Can a

county be held liable in a Section 1983 case

involving excessive use of force for a single

hiring decision made by a county official?

The Court said no, saying that county liability for a sheriff’s decision to hire does not

“depend on the mere probability that any

officer inadequately screened will inflict any

constitutional injury. Rather, it must depend

on a finding that this officer was highly likely

to inflict the particular injury suffered by the

plaintiff.” This is a higher standard for liability for negligent hiring than the “deliberate

indifference” standard set in negligent failure

to train cases.

This is the only case decided by the United

States Supreme Court thus far on negligent

hiring. Although the case involves law

enforcement, there are good reasons to

assume it applies to probation and parole as

well. Moreover, although the case involves

county liability rather than liability of a

supervisor for negligent hiring, there is no

reason to believe it will not apply to supervisors if that issue ever comes up before the

Court. In sum, in the absence of statute it

may be assumed that the high standard set

by the Court in Brown for county liability is

the same standard that will be set for liabilities of supervisor negligent hiring.

It is important to note, however, that the

Brown case is a Section 1983 (federal) case.

State courts may set a lower standard for liability in state tort cases for negligent hiring.

C. Negligent Assignment

Negligent assignment means assigning an

employee to a job without ascertaining

whether or not he is adequately prepared for

it, or keeping an employee on the job after

he or she is known to be unfit. Examples

would be a reckless driver assigned to drive a

government motor vehicle or leaving an officer who has had a history of child molestation in a juvenile detention center. The rule

is that a supervisor has an affirmative duty

not to assign or leave a subordinate in a position for which he or she is unfit. In Moon v.

Winfield,

19 liability was imposed on the police

superintendent for failure to suspend or transfer an errant officer to a nonsensitive assignment after numerous disciplinary reports

had been brought to the supervisor’s attention. The court held that supervisory liability

ensued because the supervisor had authority

to assign or suspend the officer but failed to

do so. Similarly, in a recent case20 dealing

with the probation of Jeffrey Dahmer, the

victim’s family sued the state of Wisconsin,

Dahmer’s probation officer, and others alleging gross negligence and mismanagement.

Their main allegation was that the new probation officer, Donna Chester, was reckless

in accepting 121 probation cases of offenders who were evaluated as high risk and not

fully following procedure and making requisite home contacts. Chester, however, had

followed agency procedure and submitted

waivers to her supervisor for those home

contacts; therefore, the court found no

recklessness or negligence on her part. The

court further held the state and Chester

were immune from liability in their official

capacity under the doctrine of sovereign

immunity in Wisconsin.

Supervisors must pay careful attention to

complaints and adverse reports against subordinates. These must be investigated, and
170CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

the investigation must be properly documented. This also implies that the supervisor

must generally be aware of the weaknesses

and competencies of subordinates and not

assign them to perform tasks in which they

are wanting in skill or competence.

D. Negligent Failure to Supervise

Failure to supervise means negligent abdication of the responsibility to oversee employee activity properly. Examples are tolerating

a pattern of physical abuse of inmates, racial

discrimination, and pervasive deprivation of

inmate rights and privileges. One court has

gone so far as to say that failure on the part

of the supervisor to establish adequate policy

gives rise to legal action.21 Tolerating unlawful activities in an agency might constitute

deliberate indifference to which liability

attaches. The usual test is: Does the supervisor know of a pattern of behavior, but has

he or she failed to act on it?22 A related question is: What constitutes knowledge of a

pattern of behavior? Some courts hold that

actual knowledge is required, which may be

difficult for a plaintiff to prove, while others

have ruled that knowledge can be inferred if

a history of violation is established and the

official had direct and close supervisory control over the subordinates who committed

the violations.

In Thomas v. Johnson

,

23 the police chief

allegedly failed to supervise an officer against

whom numerous complaints had been filed,

resulting in an assault, battery, negligence,

and violation of the plaintiff’s civil rights. In

both cases, the courts noted possible liability

for negligent failure to supervise. In London

v. Ryan

,

24 one Lt. Weaver was the senior officer at the scene of a crime that resulted in

two young officers firing their weapons and

injuring an innocent person. Although he

arrived in his patrol car at the same time as

the two responding officers, Lt. Weaver

failed to exit his vehicle and take command.

The Louisiana court said that Lt. Weaver’s

failure to provide proper supervision in a situation involving firearms created a grave risk

of serious bodily injury to innocent parties

at the scene of the crime. In failing to provide supervision, Weaver breached a duty he

owed the plaintiff and other parties present;

hence, he was obliged to repair it.

The current law on liability for negligent

failure to supervise is best summarized in an

article as follows:25

To be liable for a pattern of constitutional violations, the supervisor must

have known of the pattern and failed

to correct or end it. . . . Courts hold

that a supervisor must be “causally

linked” to the pattern by showing that

he had knowledge of it and that his or

her failure to act amounted to approval

and hence tacit encouragement that

the pattern continue.

A writer gives this succinct advice: “The

importance of this principle is that supervisors cannot shut their eyes and avoid responsibility for the acts of their associates if they

are in a position to take remedial action and

do nothing.”26

E. Negligent Failure to Direct

Failure to direct means not sufficiently

telling the employee of the specific requirements and proper limits of the job to be

performed. Examples are failure on the part

of the supervisor to inform an employee in a

prison mailroom of the proper limits of mail

censorship or to advise prison guards as to

the extent of preserved, rights of access to

court and counsel. In one case,27 the court

refused to dismiss an action for illegal entry,

stating that it could be the duty of a police

chief to issue written directives specifying

the conditions under which field officers can

make warrantless entries into residential

places. The court held that the supervisor’s

failure to establish policies and guidelines

concerning the procurement of search warrants and the execution of various departmental operations made him vicariously

liable for the accidental shooting death of

a young girl by a police officer. In another
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LIABILITIES OF

SUPERVISORS

case,28 the failure to direct involved the chief’s

negligence in establishing procedures for the

jail concerning diabetic diagnosis and treatment. The case involved incarceration for

public drunkenness. The arrestee experienced

a diabetic reaction that resulted in a diabetic

coma, stroke, and brain damage. The jailer

did not recognize this condition and, therefore, failed to provide for the proper medical

care, resulting in death. Liability was assessed.

The best defense against negligent failure to

direct is a written manual of policies and

procedures for departmental operations. The

manual must be accurate and legally updated,

and it must form the basis for agency operations in theory and practice. It must cover

all the necessary and important aspects of

the job an employee is to undertake. It is

also necessary that employees be required to

read and to be familiar with the manual as

part of their orientation to the agency. A

signed statement by the employee to the

effect that he or she has read and understood the manual will go a long way toward

exculpating a supervisor from liability based

on failure to direct.

F. Negligent Entrustment

Negligent entrustment refers to the failure of

a supervisor to supervise or control properly

an employee’s custody, use, or supervision of

equipment or facilities entrusted to him on

the job. Examples are improper use of vehicles and firearms that result in death or serious injury. In Roberts v. Williams,

29 a farm

superintendent gave an untrained trustee

guard a shotgun and the task of guarding a

work crew. The shotgun discharged accidentally, seriously wounding an inmate. The

court held the warden liable based on negligence in permitting an untrained person to

use a dangerous weapon. In McAndrews v.

Mularchuck,

30 a periodically employed reserve

patrolman was entrusted with a fireman

without adequate training. He fired a warning shot that killed a boisterous youth who

was not armed. The city was held liable in a

wrongful death suit. Courts have also held

that supervisors have a duty to supervise

errant off-duty officers where an officer had

property, gun, or nightstick belonging to a

government agency.

G. Negligent Failure to Discipline

Negligent failure to discipline means the

failure to take action against an employee in

the form of suspension, transfer, or terminations, when such employee has demonstrated unsuitability for the job to a dangerous

degree. The test is: Was the employee unfit

to be retained and did the supervisor know

or should he have known of the unfitness?31

The rule is that a supervisor has an affirmative duty to take all necessary and proper

steps to discipline and/or terminate a subordinate who is obviously unfit for service.

This can be determined either from acts of

prior gross misconduct or from a series of

prior acts of lesser misconduct indicating

a pattern of unfitness. Such knowledge

may be actual or presumed. In Brancon v.

Chapman,

32 the court held a police director

liable in damages to a couple who had been

assaulted by a police officer. The judge said

that the officer’s reputation for using excessive force and for having mental problems

was well known among the police officers

in his precinct; hence, the director ought

to have known of the officer’s dangerous

propensities and to have fired him before

he assaulted the plaintiffs. This unjustified

inaction was held to be the cause of the

injuries to the couple for which they could

be compensable. In McCrink v. City of

New York,

33 a police commissioner who personally interviewed an errant officer, and yet

retained him after a third offense of intoxication while on duty, was deemed to have

actual knowledge. Presumed knowledge arises where the supervisor should have known

or, by exercising reasonable diligence, could

have known the unfitness of the officer.

No supervisory liability arises where the

prior acts of misconduct were minor or

unforeseeable, based on the prior conduct

of the officer.
172CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

The defense against negligent retention

is for the supervisor to prove that proper

action was taken against the employee and

that the supervisor did all he or she could to

prevent the damage or injury. This suggests

that a supervisor must know what is going

on in the department and must be careful to

investigate complaints and document those

investigations.

In summary, supervisory liability under state

law arises under a variety of circumstances,

all based on negligence. While most courts

impose supervisory liability only when the

negligence amounts to deliberate indifference, other courts go with a lower standard.

Regardless of the standard used, the determination of negligence is made by the trier of

fact, be it a judge or jury, and so the distinction may not be all that significant. The

seven possible sources of liability discussed

above are not mutually exclusive and do in

fact overlap. For example, negligent failure

to direct or assign may also mean failure to

supervise, and vice versa. The plaintiff’s

complaint may, therefore, cover more than

one area of potential liability even if allegations are anchored on a single act.

■■■

III. LIABILITIES OF

SUPERVISORS

FOR WHAT THEY

DO TO THEIR 

SUBORDINATES

(DIRECT LIABILITY) I

n contrast to vicarious liability (liability

of supervisors for what their subordinates

do, where cases are filed by probationers or

parolees), direct liability is filed by employees against supervisors allegedly because

employees’ rights have been violated by

the supervisor. 

Direct liability of supervisors under state law

for acts affecting subordinates arises from

varied sources and in a number of ways.

Responsibilities attach in the hiring, termination, demotion, suspension, or reassignment phases of a supervisor’s work. There

are usually two issues involved in supervisorsubordinate cases. The first has to do with

the causes for which an employee may be

terminated, demoted, suspended, or reassigned. The second looks at the procedure

that must be followed, if any, before an

employee may be terminated, demoted, suspended, or reassigned. Both cause and procedure for supervisory action are primarily

governed by laws on: ■ Rights of employees given by the

Constitution; 

■ Rights of the employee given by federal

laws;

■ Rights of the employee given by state

laws;

■ Rights of the employee given by agency

policy;

■ Rights of the employee given by collective

bargaining agreements. 

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

example, prevailing state laws may supplement

an employee contract; moreover, basic constitutional rights overlay individual contracts or

agency regulations. Unconstitutional provisions in contracts or agency guidelines may

be challenged in court. The waiver of a basic

constitutional right as a condition for employment has found increasing disapproval in public employment litigation.34

A. Rights of Employees Given by

the Constitution

Constitutional rights usually invoked by

employees are: ■ First Amendment Freedom of Religion,

Speech, the Press, Assembly, and Petition
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SUPERVISORS

the Government. Example: An employee

is terminated or disciplined for exercising

constitutional rights, such as suing his or

her superior or department, criticizing the

department, exercising freedom of religion,

or choosing an unconventional lifestyle.

As a general rule, an employee may be disciplined if the supervisor is able to prove

that what the employee did impairs his

or her efficiency in the department,35 or

demonstrably affects job performance.36

For example, criticisms, which ordinarily

fall under the exercise of free speech, must

have an adverse effect, or affect the efficiency of the department, before adverse

action against the employee can be taken.

In Pickering v. Board of Education,

37 the

United States Supreme Court said that the

right to speak cannot be curtailed absent

proof of false statements knowingly and

recklessly made, or a statement that disrupts the harmony of the department.

■ Fourth Amendment Right Against

Unreasonable Searches and Seizures.

Example: An employee’s desk is searched

without permission. The general rule is

that supervisors may validly conduct a

search without a warrant or probable

cause if the officer has no reasonable

expectation of privacy.38

■ Fifth Amendment Right Against SelfIncrimination. Example: An employee is

dismissed for refusing to answer questions

in connection with an investigation. The

general rule is that an employee has no right

against self-incrimination in an administrative investigation. Consent searches are

valid; hence, he or she must answer carefully crafted questions but will retain such

rights in a criminal investigation. Whatever

is obtained in the administrative investigation cannot be used against the employee

in a subsequent criminal proceeding. 

■ 14th Amendment Right to Equal

Protection, Due Process, Property

Interests, and Liberty Interests. Example:

An employee is dismissed from the job

without a hearing. The general rule is that

an employee acquires property rights to

his or her job upon passing the probationary status, the length of which is governed

by state law. When the termination takes

away an employee’s liberty (such as (a)

when it seriously damages an employee’s

standing and association in the community, or (b) when the action imposes a stigma or other disability), that limits an

employee’s chances for other employment.

The employee is entitled to rights under

the 14th amendment.

The general rule concerning homosexual

activities appears to be that sufficient nexus

must exist between homosexuality and job

performance to justify dismissal.39 In one

case, the court held that a homosexual junior

high school teacher could not be dismissed

or transferred simply because he was a homosexual. Some showing must be made of his

or her homosexual behavior with students

or teachers, or that his or her homosexuality,

in general, was notorious.40 In another case,41

the court held that civil servants could not

be discharged for homosexuality unless their

homosexuality was rationally related to job

performance.

In other sexual activity cases, the general rule

is that an employee’s private sexual conduct

is within the zone of privacy and is, therefore,

shielded from government intrusion. Most

disciplinary actions by supervisors have not

been sustained because these are areas of an

employee’s life over which the government

has no legitimate interest. An exception is

where the sexual activities of an employee

are open and notorious, or if such activities

take place in a small town where impact on

the department may be easily demonstrable.

In these cases, the supervisor might very well

have an interest in investigating such activities and terminating the employee.42

Mere membership in a political party cannot

be prohibited or used as a basis for disciplinary action, but participation in partisan politics can be prohibited because of possible

conflict of interest and potential abuse of
174CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

the prerogatives of one’s office.43 In Giglio v.

Court of Pennsylvania

,

44 the court found such

a prohibition to have important state interests. The employee retains the options of

resigning his or her employment or requesting an exemption from the Pennsylvania

court. Similarly in Georgia,45 holding a

political office and being a state employee

were held to be a conflict of interest for

which the state had a compelling interest

in imposing restrictions about holding both

at the same time.

The general rule stated above can be superseded, however, by federal or state law, agency

policy, civil service rules, or collective bargaining agreements. Because of this, specific

employee rights vary from one jurisdiction

to another.

B. Rights of Employees Given by

Federal Law46

Several statutes govern direct liability of

supervisors to subordinates under federal

law. Most notable are the following:

1. The Equal Pay Act of 1963. The Equal

Pay Act protects women and men against

pay discrimination based on sex, if they

are performing substantially equal work

in the same establishment. The law does

not apply to pay differences based on

factors other than sex, such as seniority,

merit, or a system that rewards worker

productivity.47

2. The Age Discrimination in Employment

Act. The Age Discrimination in Employment Act protects workers aged 40 to 70

from age discrimination in hiring, discharge, pay, promotions, fringe benefits,

and other aspects of employment. It

applies to all federal, state, and local governments. The law does not apply if an

age requirement or limit is a bona fide

job qualification, is a part of a bona fide

seniority system, or is based on reasonable

factors other than age.48 A June 2000 case

held that the discrimination claim must

be weighted along with all other factors

that precipitated the firing.49 Once the

defendant has established a prima facie

case of discrimination, direct evidence of

the plaintiff’s bias is not necessary for the

case to go to the jury. In other words,

indirect evidence will suffice to take the

defendant’s claims to jury deliberation.

3. The Rehabilitation Act of 1973. The

Rehabilitation Act of 1973, the precursor

to the ADA, applies to Federal agencies

receiving federal funding. Under its auspices, discrimination based on disability is

prohibited, including rehabilitation, public building access, and employment.50

4. The Americans With Disabilities Act of

1990. In an attempt to further the beneficial effects of the Rehabilitation Act of

1973, the Legislature passed the Americans

With Disabilities Act of 1990. Under this

act, discrimination based on disability was

further prohibited as long as the individual had the requisite skills for the job in

question. Admittance could not be denied

to governmental programs, services, or

activities, and public accommodations.51

5. The Civil Rights Act of 1991. This act

deals mainly with technical court rules

dealing with discrimination cases and

opened the issue of damages awarded to

include emotional suffering and punitive

damages.52

6. The Family and Medical Leave Act of

1993. This act, applying to employers

with 50 or more employees, provides

leave, which is unpaid, for 12 weeks to

any employee who qualifies, such as

for childbirth/adoption/foster care or

parental/spousal/child medical care.53

7. The Pregnancy Discrimination Act. In

1978, the Legislature amended Title VII

and added the Pregnancy Discrimination

Act. Under the Pregnancy Discrimination

Act, employers are required to treat both

hiring and leave decisions dealing with

pregnancy, childbirth, and all related
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SUPERVISORS

matters as though it were a temporary

disability. The only exception is the

allowance of refusal to hire because the

woman cannot complete the probationary

employment period because of a pregnancyrelated issue. Paid maternity leave is not

required; however, if the agency has a

temporary disability pay policy, it must

be followed in this situation. Promotion,

forced leave, and firing are also dealt with,

as none may be done based solely on status as pregnant or dealing with pregnancyrelated issues.54

8. The Veterans Era Readjustment Act. This

act deals with the allocation of governmental contracts. The Veterans Era Readjustment Act states that federal agencies

should seek to hire disabled and nondisabled veterans for contracts of and over

the amount of $10,000.55

9. The Civil Rights Act of 1964. One of the

most significant civil rights legislation

passed by the Congress of the United

States in the last four decades, the Civil

Rights Act of 1964 prohibits discrimination in employment on the basis of race,

sex, religion, color, or national origin.

Under this law, employment discrimination is prohibited in such areas as recruitment, testing, hiring or firing, transfer,

promotion, layoff, and training.56 It is also

the basis for rules and regulations prohibiting sexual harassment of employees. 

Sexual harassment is defined as unwelcome verbal, nonverbal, or physical conduct of a sexual nature or based on sex. It

is a form of discrimination based on sex;

hence, it is prohibited by the Civil Rights

Act of 1964. 

Activities that may constitute sexual

harassment include the following:57

a. Touching.

b. “Off color” jokes.

c. Unwanted, unwelcome, and unsolicited

propositions.

d. Use of language.

e. Holding up to ridicule.

f. Leaving sexually explicit books, 

magazines, etc., in places where female 

employees can find them.

g. Notes, either signed or anonymous, 

placed on bulletin boards, in lockers, 

in desks, etc.

h. The required wearing of particular 

types of clothing.

i. Transfer, demotion, dismissal, etc., 

after refusing or resisting sexual advances.

j. Requesting and/or ordering employees

of one sex to perform tasks traditionally

viewed as “women’s work,” such as making

coffee, going out to get lunch, or doing

personal shopping for male supervisors.

k. Demeaning comments or actions.

l. Unwanted, unwarranted, and unsolicited

“off duty” telephone calls, contacts, etc.

The above is an illustrative, not exhaustive,

list of harassing activities. Not all sexually

oriented acts constitute sexual harassment.

There are levels of sexual harassment that

vary in severity and consequence. For example, telling an “off color” joke is not as serious as sexual assault. The general rule is that

less serious types of sexual harassment do

not automatically lead to liability, whereas

more serious acts do. 

Sexual harassment can take place in two ways,

vertical or horizontal: (1) harassment of subordinates by supervisors, and (2) harassment

of employees by coemployees who are not

their superiors. The general rule is that harassment of subordinates by supervisors (vertical)

leads to agency liability, while harassment of

employees by coemployees (horizontal) leads

to supervisory liability only if the supervisor

knew or should have known about it and

could have stopped it but did not.
176CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

Must there be reprisal or revenge by the

supervisor before harassment becomes

unlawful? What if the supervisor propositions a subordinate but does not take any

adverse action whatsoever when rebuffed?

The answer is that sexual harassment,

whether physical or verbal, may be unlawful

even if there is no immediate employment

reprisal. Under a 1980 Equal Employment

Opportunity Commission regulation, sexual

harassment is present if the unwelcome sexual advance has the purpose or effect of

unreasonably interfering with an individual’s

work performance or creating an intimidating, hostile, or offensive work environment.58

There is, therefore, no need for adverse action

from the supervisor for sexual harassment to

take place. 

In Cuesta v. Texas Dept. of Criminal Justice

,

59

a 1991 decision, the court held that harassment that affects the psychological wellbeing of the employee is enough, although

the defendant could not prove that a term or

condition of her work was affected. Further,

the court held that the department had a

lot of inappropriate behavior pervading the

work environment; therefore, the board had

knowledge of the harassment on a constructive level. Sexual harassment is an active area

of law that is currently in the process of

refinement by the courts. In 1998 alone,

the United States Supreme Court decided

three cases on sexual harassment that have

implications in probation and parole. These

cases deal with the issues of same sex harassment,60 reasonableness of employer’s conduct,61 and lack of adverse consequences for

rejecting advances.62 

C. Rights of Employees Given by

State Laws

Many federal laws have also been enacted into

state laws and can, therefore, be enforced by

the states, usually by creating a state Human

Rights Commission. When this happens, the

law can then be enforced both by the federal

government and the states. The federal government may choose to leave enforcement to

the state—based on a financial incentive. In

addition to re-enacting federal laws, states

may also pass laws of their own giving rights

and remedies to employees. An example is

whistleblower statutes that proscribe dismissal of the employee who exposes malfeasance in an agency. Some states have civil

service laws giving employees rights that

must be respected by supervisors. State rules

vary as to whether public employees are covered by civil service rules.

D. Rights of Employees Given by

Agency Policies

Agency policies sometimes give rights to

employees beyond those given by the United

States Constitution and laws. Those policies

are binding on the agency. These rights may

be enforced in state courts. Agencies must

therefore be careful when drafting agency

policies affecting their own employers.

These policies do not rise to the level of

constitutional rights; hence, they cannot be

the subject of a lawsuit under Section 1983,

which is a source of legal action under state

tort law. 

E. Rights of Employees Given by

Collective Bargaining Agreement

Collective bargaining agreements cover various aspects of employment. These provisions

are specific about working conditions and

usually give more rights to employees than

are given by the Constitution and laws.

These rights bind the agency and must be

respected. Penalties for violations are usually

provided for in the collective bargaining

agreement itself. Some probation/parole

employers are unionized and working conditions are governed by collective bargaining

agreements; other employers are not.
177

CHAPTER

10

LIABILITIES OF

SUPERVISORS

IV. AGENCY 

REPRESENTATION

AND LIABILITY

FOR ACTS OF 

SUPERVISORS

As a general rule, a supervisor is personally liable if he or she acts outside the

scope of employment. State officials sued in

their individual capacity are liable for civil

rights violations,63 although neither the state

nor state officials may be sued in state court

under Section 1983, when they were acting

in their official capacity.64 An employee’s act

is within the scope of employment if the

following are present: the act is of the kind

he or she is employed to perform; it occurs

within the authorized time and space limits;

and it is performed, at least in part, with

the intent of serving the employer.65 In short,

there is no governmental liability unless the

act performed is at least incidental to employment and a part of the employee’s duties. As

to who is the employer, the Court held in

1997 that whether a sheriff is an agent of the

county or state is determined by the state’s

constitution, laws, and other regulations.66

In an earlier case, Monroe v. Pape,

67 the

United States Supreme Court decided that

the plaintiff could not recover from the

municipality in Section 1983 cases, saying

that “the response of the Congress to make

municipalities liable for certain actions . . .

was so antagonistic that we cannot believe

that the word ‘person’ was used in this particular context to include them.” All that

changed in 1978, when in Monell v. Department of Social Services,

68 the court reversed

itself, holding that municipalities and other

local government units are “persons” that

can be sued directly under Section 1983 for

monetary, declaratory, or injunctive relief.

Although the court found the municipality

could be liable for damages, it declined to

find liability for respondeat superior, or simply because of employment. Further, quoting

from Popow v. City of Margate, a 1979 decision, “[T]o establish municipal liability, a

plaintiff must prove either (a) an official policy or custom which results in constitutional

violations, or (b) conduct by officials in

authority evincing implicit authorization or

approval or acquiescence in the unconstitutional conduct.”69

In Quern v. Jordan,

70 the Court reiterated

that the 11th amendment immunity barred

suits against states for damages, thus reaffirming the doctrine of sovereign immunity.

As a result, only natural persons, municipalities, cities, and other local units of government can be sued for damages without

consent. State immunity is alive and well,

unless waived by legislation, which many

states have done in varying degrees, or in

court decisions. In an action for overtime

pay, the Court held probation officers could

not sue their state due to sovereign immunity.71 The federal legislature does not have

the authority to override a states sovereign

immunity with a federal law. Even in states

where sovereign immunity still applies in

totality, nothing bars the state from indemnifying its own supervisors for liability

incurred while acting in the course of duty.

The Court found that municipalities cannot

claim a good faith defense under Section

1983.72 

If a supervisor acts outside the scope of

employment and is sued in his or her individual capacity, chances are that the agency

will refuse to provide legal defense, nor will

the agency indemnify if the officer is held

liable. The matter of legal representation

should be a justifiable cause of concern

among supervisors because of its undefined

status. While some states provide representation as a matter of right, surveys have shown

that legal representation in many states is
178CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

largely unstructured.73 In some states and

agencies, an informal and unwritten understanding allows the state attorney general to

defend the supervisor if, in his or her judgment, the case is meritorious. In municipal

agencies, the practice is even more uncertain, with no designated legal counsel to

undertake the defense and no official legal

representation policy.

To compound the uncertainty, most jurisdictions will represent only if the employee

acted within the scope of duty. That may

sound reasonable and consistent with public

policy, except that the term “scope of duty”

is subjective and eludes precise definition.

An agreed and viable working definition

goes a long way toward protecting the

rights of officers and alleviating anxiety.

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 purposes of indemnification or representation

on appeal. An independent judgment must

be given to the agency, based on circumstances as determined by that agency. Ideally,

only gross and glaring cases of abuse should

be denied representation or indemnification.

Without this understanding, agency legal

assurances of indemnification may only be a

mirage because, as current case law stands,

acts done by a supervisor in good faith and

within the scope of employment are likely to

be exempt from liability anyway, so there is

nothing to indemnify.

Supervisory lawsuits can lead to a possible

conflict of interest in a number of ways. If

the supervisor is sued in both an official and

individual capacity, the agency might assert

that the supervisor acted outside his or her

scope of duty and hence should be personally liable. In the absence of mandated representation, the supervisor will most likely

have to provide his or her own defense. This

creates a financial burden and places the

supervisor at a disadvantage because of the

inevitable implication that in the judgment

of the agency the act was unauthorized. A

second source of conflict of interest comes

from the supervisor’s relationship with his or

her subordinate. A supervisor, when sued for

what his or her subordinate has done, may

want to dissociate himself from the act,

claiming either that the subordinate acted

on his or her own or in defiance of agency

policy, particularly when the violation is

gross or blatant. In these instances, the

supervisor’s defense will be inconsistent with

that of the subordinate. Determination will

have to be made by the agency as to the

party it will defend and whom to indemnify

if held liable. Chances are that the agency

will decide for the supervisor, but that is a

decision to be made by policymakers on a

case-by-case basis.

■■■

SUMMARY S upervisory liability is a fertile source

of civil litigation against probation and

parole personnel and departments. The

developing case law in this field strongly

suggests the need for supervisors to know

the legal limits of their job and to be more

aware of what goes on among, and the competencies of, subordinates in their department. An area that deserves immediate

attention, because of increasing court litigation, is negligent failure to train. Indications

are that training is a neglected area in corrections. This is deplorable because corrections in general is a field that, because of low

pay and unattractive job status, needs training even more than the other subsystems in

criminal justice if the quality of personnel is

to be upgraded. Problems arise for supervisors

because of financial constraints occasioned

by the reluctance of political decisionmakers

to commit financial resources to training,

despite perceived need. Such neglect carries

serious legal implications for the supervisor

and decisionmakers, hence must be given

proper and immediate attention.
179

CHAPTER

10

LIABILITIES OF

SUPERVISORS

In addition to civil liability for what their

subordinates do, supervisors are liable

for what they do to their subordinates.

Supervisors must be familiar with the rights

of their subordinates that are given by the

Constitution, federal and state laws, agency

policy, and collective bargaining agreements.

These rights vary a lot from state to state

and have become a rich source of litigation.

Sexual harassment should be an area of concern for supervisors. Agencies must have

policies on sexual harassment, and complaints should be promptly investigated.

Sexual harassment of subordinates by supervisors, once proven, almost always leads to

liability and other consequences.

The days of unfettered discretion among

supervisors in probation and parole are

gone. Judicial scrutiny can be irritating and

sometimes frustrating for a probation or

parole supervisor, yet it can also lead to

more effective and equitable administration,

something the public desires and deserves.

Judicial intervention and supervisory liability may be a mixed blessing, but they are

realities with which probation and parole

supervisors must learn to live and cope.

Notes

1. This chapter is a modified and updated version of an article that was first published in

Federal Probation, September 1984, pp. 52-56.

2. Brandon v. Holt, 469 U.S. 464 (1985).

3. Retenauer v. Flaherty, 642 A.2d 587 (1994).

4. Del Carmen, Rolando. 1984. “Legal Liabilities

and Responsibilities of Corrections Agency

Supervisors.” Federal Probation, September 1984.

5. Meistinsky v. City of New York, 140 N.Y.S.2d

212 (1955).

6. Owens v. Haas, 601 F.2d 1242 (2d Cir.

1979), cert. denied.

7. 601 F.2d 1242 (2d Cir. 1979), cert. denied,

100 S. Ct. 483.

8. 610 F.2d 693 (10th Cir. 1979).

9. 763 F.2d 394 (10th Cir. 1985).

10. Oklahoma City v. Tuttle, 37 Cr. L. 3077

(1985).

11. Board of the County Commissioners of

Bryan County, Oklahoma v. Brown, 520 U.S.

397 (1997).

12. 489 U.S. 378 (1989).

13. Macigewski v. Backus and Kandrevas, Nos.

97-1516; 97-1591; 1998 U.S. App. LEXIS

15395.

14. Alberti v. Sheriff of Harris County, 460 F.

Supp. 649 (S.D. Tex. 1975).

15. See AELE Special Report, The AELE Workshop

on Police and Liability and the Defense of

Misconduct Complaints (Americans for Effective

Law Enforcement, 1982), p. 12-1.

16. Moon v. Winfield, 383 F. Supp. 31 (N.D.

Ill. 1974).

17. Peters v. Bellinger, 159 N.E.2d 528 

(Ill. App. 1959).

18. 520 U.S. 397 (1997).

19. 383 F. Supp. 31 (N.D. Ill. 1974).

20. Weinberger v. State of Wisconsin 105 F.3d

1182 (1997).

21. Ford v. Brier, 383 F. Supp. 505 (1974).

22. Moon v. Winfield, 383 F. Supp. 31

(N.D. Ill. 1974).

23. 295 F. Supp. 1025 (D.D.C. 1968).

24. 349 So. 2d 1334 (La. App. 1977).

25. Hardy & Weeks, Personal Liability of Public

Officials Under Federal Law 7 (1980).

26. J. Palmer, Civil Liability of Correctional

Workers 24 (1980).
180

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

27. Ford v. Brier, 383 F. Supp. 505 (E.D. Wis.

1974).

28. Dewell v. Lawson, 489 F.2d 877 (10th Cir.

1974).

29. 302 F. Supp. 1972 (N.D. Mass. 1969).

30. 162 A.2d 820 (N.J. 1960).

31. See AELE Special Report, supra note 11, at

122.

32. L.R. No. 10509 (W.D. Tennessee 1981).

33. 71 N.E.2d 419 (Ct. App. N.Y. 1974).

34. Garrity v. New Jersey, 365 U.S. 493 (1967).

35. See Pickering v. Board of Education, 391

U.S. 563 (1968).

36. See New York v. Onofre, 48 U.S.L.W. 2520

(N.Y. App. Div. January 24, 1980).

37. 391 U.S. 563 (1968).

38. O’Connor v. Ortega, 480 U.S. 709 (1987).

39. Safransky v. State Personnel Board, 215

N.W.2d 379 (1974).

40. Acanfora v. Board of Education, 359 F.

Supp. 843 (D. Md., 1973).

41. Norton v. Macy, 417 F.2d 1161 (D.C. Cir.,

1969).

42. Shuman v. City of Philadelphia, 470 F. Supp.

449 (E.D. Pa. 1979).

43. There are federal and state laws restricting the

political activities of certain public officers. See,

in general, BRANCATO, supra note 31, at 78.

44. 675 F. Supp. 266 (1987).

45. MacKenzie v. Snow, 675 F. Supp. 1333

(1987).

46. This section relies on an article by P. Rubin,

Civil Rights and Criminal Justice: Employment

Discrimination Overview (Research in Action,

U.S. Department of Justice, National Institute

of Justice, June 1995, NCJ 154278).

47. 29 U.S. Code, Sec. 206 (1976).

48. 42 U.S. Code, Sec. 2000e (1976).

49. Reeves v. Sanderson Plumbing Products, No.

99-536 (2000).

50. Sections 501.503, and 504, 29 U.S. Code,

Sec. 791, 793, 794.

51. 42 U.S. Code, Sec. 12101.

52. 42 U.S. Code, Sec. 1981 et seq. (1976).

53. 29 U.S. Code, Sec. 2601 et seq. (1976).

54. 42 U.S. Code, Sec. 2000k (1976).

55. 38 U.S. Code, Sec. 2012.

56. 42 U.S. Code, Sec. 2000e-2000e-17 (1976).

57. See Americans for Effective Law Enforcement,

Legal Defense Manual, 1982, p. 49.

58. See G. Brancato and E.P. Polebaum, The

Rights of Police Officers (New York: Avon Books),

1980, pp. 5859. See also, Jansen v. Packaging

Corp. of America, 895 F. Supp. 1053 (1995).

59. 805 F. Supp. 451 (1991).

60. Onscale v. Sundowner Offshore Services,

Inc., 523 U.S. 75 (1998).

61. Faragher v. City of Boca Raton, 524 U.S.

775 (1998).

62. Burlington Industries, Inc. v. Ellerth, 524

U.S. 742 (1998).

63. Hafer v. Melo, 502 U.S. 21 (1991).
181

CHAPTER

10

LIABILITIES OF

SUPERVISORS

64. Will v. Michigan Department of State Police,

491 U.S. 58 (1989).

65. See AELE Special Report, supra note 11, at

14-1.

66. McMillan v. Monroe County, Alabama 520

U.S. 781 (1997).

67. 365 U.S. 167 (1961).

68. 436 U.S. 658 (1978).

69. 476 F. Supp. 1237, at 1245 (1979).

70. 440 U.S. 332 (1979).

71. Alden v. Maine 527 U.S. 706 (1999).

72. Owen v. City of Independence, 445 U.S.

622 (1980).

73. See, in general, R. del Carmen, “Legal

Responsibilities of Probation and Parole Officers;

Trends, General Advice, and Questions,” Federal

Probation 45 (3) (Sept. 1981).

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

CHAPTER 11

185

CHAPTER

11

QUESTIONS, SPECIFIC

CONCERNS, AND

GENERAL

ADVICE

INTRODUCTION

This final chapter features questions,

specific concerns, and general advice

that should be of help to readers. Taken

from the first edition of the book, the questions that start the chapter are a composite

of the concerns expressed by the Board of

Consultants for the first edition. The questions are featured in this final chapter to

heighten awareness of the legal issues that

need further study and exploration in specific jurisdictions. 

Five concerns are also addressed in this chapter: legal representation, indemnification,

professional liability insurance, immunity

statute, and source of authoritative information. Not much has changed in these concerns since the first edition was published;

therefore, these concerns are reiterated. 

Finally, general advice is given to probation/parole officers on how legal liability

might be lessened or avoided. The generic

advice given here represents the composite

result of an extensive national survey of

offices of attorneys general that was conducted in the early eighties for the first edition of this book. There is every reason to

think that their advice would be the same

today; hence, that part of the survey is replicated in this third edition. It is not meant,

however, to preempt the advice of a legal

counsel who is more familiar with the law

in specific jurisdictions.

■■■

I. QUESTIONS

For better legal protection and deeper

awareness, listed below are important

questions probation/parole officers should

ask and for which they should obtain answers

from their employers and legal advisors.

These questions highlight several vital issues

addressed in this monograph and help apply

these legal concerns to individual states or

jurisdictions. It would be in the interest of

probation/parole officers to arrange a seminar or workshop with their employers, legal

advisors, or other knowledgeable persons

who can give authoritative answers to the

following:

1. If I am sued in a criminal, tort, or civil

liability action in state or federal court,

will my agency or employer provide a

lawyer to represent me?

2. If a parolee, probationer, or anyone else

is contemplating suit against the agency,

agency personnel, or me, and I am contacted by their lawyer, what should I do?

3. What specifically should I do if and when

I am served with legal papers and/or court

documents indicating that a lawsuit has

been filed against me?

4. If there is a conflict between me and a

codefendant, or me and my agency, will

the government appoint a different attorney for me?

5. Are there any special defenses available to

me as a state probation/parole officer in a

tort suit in which I am the defendant?

6. Are there any specific criminal laws in

my jurisdiction of which I must be aware

that apply specifically to probation and/or

parole officers or public officials/employees?

7. Are there any decided cases in my state

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?

8. What type of immunity, if any, do I enjoy

as a probation/parole officer under my

state’s law?

9. Does our state have laws that would

indemnify me if I am found liable in a

state tort or a federal civil rights action? If

so, how do these laws apply to me? Is the

coverage mandatory or optional?
186CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

10. What do I have to do to enhance my

chances of indemnification if I am sued?

What procedures must I follow?

11. What is the best way, consistent with

the laws of my state, to protect my personal assets from seizure and execution

for satisfaction of a judgment against

me?

12. Is there any kind of liability insurance

available to me individually or as a member of a group through the government

or privately?

13. Does our state have a state civil rights

law that might affect me in my work?

If so, what and how?

14. Does our state have a law covering the

issue of disclosure of information about

the offender to others (e.g., privacy

laws, laws on confidentiality of criminal

offender record information, and laws

on the confidentiality of mental health,

education, and vocational information)?

If so, how does it apply to me and what

are the penalties and procedures for

violations?

15. Does our state have a state law that

gives the offender, his or her lawyer, his

or her designate, or others access to

information in my file or in my reports?

If so, what are the specific requirements

and what are the penalties and procedures for noncompliance?

16. Does our state have an Administrative

Procedures Act that applies to me? 

If so, how?

17. As a parole officer, what should I do if,

at a revocation hearing, I feel that the

hearing officer is denying the parolee

his or her rights to due process under

Morrissey?

18. Is there a compilation of regulations,

policies, and directives that govern my

conduct as an employee and relate specifically as to my work with offenders?

19. Who is my legal advisor? Is there any

public official to whom I can turn who

is obligated to advise me in legal matters and upon whose advice I am entitled to rely?

20. Am I a peace officer? What are my law

enforcement powers vis-à-vis arrest,

search, seizure, and ability to assist and

be assisted by law enforcement officers?

Am I empowered to carry a weapon?

21. Does my court or agency have any

guidelines on arrest and search or frisk of

offenders and their homes and property?

22. Are there specific laws in our state that

relate to my responsibilities and duties

as a public employee and as a probation/parole officer in particular? What

are they?

23. Are there specific laws in our jurisdiction that set out the rights and duties

of my offenders?

24. Do we have a written policy on assessment of restitution that will give the

probationer access to a judicial determination if he disagrees with the amount

claimed by the victim or assessed preliminarily by me?

25. According to state law or court decisions in this state, can a judge or parole

board delegate the imposition of conditions or the setting of the restitution

amount to me? If these cannot be delegated, but judges or boards do it anyway, what is my best defense under state

law against liability?

26. Do we have a written policy on my

imposing or modifying conditions of

probation or parole that will give the

offender immediate access to the judge

or board if he contests my action?

27. What should I do about transporting

offenders (prisoners) in my private

vehicle? What responsibility will my

employer assume in the event of an

auto accident?
187

CHAPTER

11

QUESTIONS, SPECIFIC

CONCERNS, AND

GENERAL

ADVICE

28. Should I warn third persons if I believe

the offender presents a possible danger to

them? If so, under what circumstances?

If it is a close call, whom should I contact for advice?

29. Do you want me to advise offenders

on procedures and on how to put their

“best foot forward” when appearing

before the court or board?

30. Do you want every violation reported

to the court or parole board?

31. What do the terms “good faith” and

“negligence” mean in our state?

32. How can I be sure that I am informed

on an up-to-date basis regarding administrative rules, regulations, and decided

cases affecting me?

■■■

II. SPECIFIC 

CONCERNS FOR 

PROBATION/PAROLE

OFFICERS

A. Legal Representation

Legal representation should rank as a major

concern of probation/parole officers. In

some states, an unwritten understanding

exists that allows the state attorney general

to undertake the defense of a public officer

if, in the attorney general’s judgment, the

case is meritorious. This informal but pervasive practice creates uncertainty and allows

denial of representation based on political or

personal considerations. States use various

guidelines in deciding the kinds of acts they

will defend. While all of the states surveyed

for the first edition of this monograph stated

that they provide legal representation at least

some of the time, a substantial number indicated that they will not defend in all civil

suits. The same survey showed that half of

the states will not undertake the defense of

an officer accused of a crime. Creation of

a state statute making such defense by the

state obligatory should be explored, if no

such statute exists. Legal representation can

be undertaken by the office of the attorney

general, the city or county legal officers, or

through a system similar to medical insurance where an employee has the option to

choose his or her own lawyer.

Legal representation on the local government

level is much less reassuring than representation for state officers. This is significant

because while parole agencies in a great

majority of states are administered and funded by the states, probation offices are predominantly controlled on the local level,

either by local judicial districts, judges, or

political agencies. Each agency determines

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

county or district attorney represent the officer. Whatever the arrangement, it is important that the policy on representation and

indemnification be clarified and formalized.

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

selectively and is far from reassuring.

B. Indemnification

Closely related to representation is the issue

of indemnification, if and when the officer is

held liable. A majority of the states provide

indemnification for the civil liabilities of their

public employees, albeit in varying amounts.

The conditions under which the state will

pay also vary and are sometimes unclear.

Moreover, although most states provide for

some form of indemnification, states often

do not automatically indemnify. In most states

and local agencies, employees can expect the

state to help pay the judgment only if the

act on which the finding of liability is based

was within the scope of employment and

done in good faith. The definitions of the

terms “within the scope of employment”
188CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

and “good faith” vary from state to state,

and a decision not to represent an employee

is usually final and not appealable.

Probation/parole officers are advised to look

into their specific state statutes covering

legal representation and indemnification.

If no such statute exists, the possibility of

adopting one ought to be examined to ensure

maximum protection for the officers. Part of

the lack of protection comes from a definitional problem. While it is difficult, if not

impossible, to spell out very specific guidelines that further refine the phrases “acting

within the scope of duty” and “good faith,”

working definitions of these terms go a long

way toward alleviating anxiety and minimizing arbitrariness. Such definitions are not

found in a number of current statutes.

For purposes of maximum protection, it is

important that there be an understanding

that a trial court’s finding that the officer

acted outside his scope of duty and in the

absence of good faith not be made binding

on the state or local agency, particularly for

purposes of indemnification. An independent determination must be allowed the representing or indemnifying state authority

(usually the attorney general’s office for state

officers and the district attorney or county

attorney for local officers), based on circumstances as perceived by that agency. Only

cases that are gross and obviously outside

the scope of employment should be denied

legal representation and indemnification.

Without this understanding, a state’s legal

representation and indemnification law can

be ineffective because, as current case law

stands, acts that are performed by probation/parole officers in good faith and within

the scope of their employment are exempt

from liability anyway. So, because of the

prerequisite of the “good faith” and “acting

within the scope of employment” provisions

of most state laws, an officer who acts in

good faith has no liability (and therefore

needs no indemnification), whereas one

who is adjudged liable (and therefore needs

indemnification) cannot be indemnified

under most state laws because he acted

in bad faith and/or outside the scope of

employment.

C. Professional Liability

Insurance

Professional liability insurance should be

given serious consideration along with the

issues of legal representation and indemnification. According to the project survey for

the first edition, only a minority of states

(30 percent) have insurance protection for

probation/parole officers. Insurance is particularly desirable in states where legal representation or indemnification is either absent

or uncertain. This is because insurance companies may provide both legal counsel and

damage compensation. In states where insurance is not provided, the enactment of a law

or the issuance of an administrative policy

should be explored and, wherever feasible,

recommended. Otherwise, personal purchase

of insurance should be considered.

The problems associated with professional

liability insurance, however, are varied. In

the first place, although law enforcement

officers can easily obtain insurance, only

a few insurance companies carry liability

insurance for corrections personnel. By contrast, liability insurance for police officers is

readily obtainable either individually or collectively through police associations. The

second problem is premium payment. Ideally,

it should be paid by the agency, but some

states and local government units do not

allow public money to be used for employee

liability insurance. Third, policymakers,

whether on the state or local level, may not

be disposed to obtain liability insurance for

their employees because of high premiums,

preferring instead to be self-insured, meaning that they will pay out of their own funds

if liability ensues. The employee paying the

premium is always an option, but that can

be prohibitive for the employee.
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CHAPTER

11

QUESTIONS, SPECIFIC

CONCERNS, AND

GENERAL

ADVICE

D. Immunity Statute

Another possible source of protection that

should be explored by probation/parole officers requires action by state legislatures. The

United States Supreme Court, in Martinez v.

California,

1 held that California’s immunity

statute was constitutional when applied to

defeat a tort claim arising under state law.

That section of the California law (section

845.8(a) of the California Government

Code) provides as follows:

Neither a public entity nor a public

employee is liable for: (a) Any injury

resulting from determining whether

to parole or release a prisoner or from

determining the conditions of his

parole or release or from determining

whether to revoke his parole or release.

A similar statute may be enacted by other

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 administrative body or a court of claims where reasonably deserving cases may be adjudicated.

Note, however, that a state-enacted exception

from civil liability does not apply to Section

1983 cases, which are based on federal law.

But although the applicability of a state

immunity statute is limited to state tort litigations, such a law does extend a measure of

protection to public officers. Although the

California statute specifically limits its coverage to parole cases, there appears to be no

legal impediment to extending that coverage

to include probation officers, particularly on

such matters as the setting of conditions,

supervision, and probation revocation.

E. Source of Authoritative

Information

Probation/parole officers in each state need a

source to which they can refer for authoritative information on the topics addressed

here. It is suggested that, at the very least,

each state develop a manual, perhaps along

the topics discussed in this monograph.

Some states have already done this, focusing

on certain specific areas of concern. The

state manual need not be lengthy, but it

must contain information specific to that

state. The topics discussed in this monograph, as well as the questions listed above,

should be helpful starting points. Agency

manual writers should remember, however,

that this monograph gives generic information that may not apply to each state or

jurisdiction. Moreover, the information in

this publication may quickly be superseded

by new decisions and statutory developments. Each state should update the information in its manual periodically, perhaps

through the probation/parole or corrections

association’s newsletter or occasional memoranda from the probation/parole agency or

the office of the attorney general.

■■■

III. GENERAL ADVICE

The survey questionnaire sent by the

project staff in the early eighties to all

offices of attorneys general in the United

States included the following question:

What three most important bits of

legal advice would you give probation

and parole officers to help them avoid

or lessen possible legal liability in connection with their work?

There is no more recent survey than that

conducted for the first edition, which was

done in the early 1980s, but the answers are

not likely to have changed over the years.

The results of that survey are therefore

reproduced here. Ranked in the order of

response frequency, the top five answers

were as follows:

■ Document your activities. Keep good

records. (40 percent)
190CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

■ Know and follow departmental rules

and regulations and your state statutes.

(35 percent)

■ Arrange for legal counsel and seek

legal advice whenever questions arise. 

(27 percent)

■ Act within the scope of your duties, and

in good faith. (20 percent)

■ Get approval from your supervisor if you

have questions about what you are doing.

(18 percent)

Other bits of advice (in descending

order) were: ■ Keep up with developments in your field

(e.g., relevant legal developments, statutes,

new departmental regulations). Ignorance

of the law or regulations excuses no one.

■ Use common sense. ■ Review important decisions with supervisors. ■ Undertake thorough investigations before

making recommendations.

■ Report the violations of offenders. ■ Notify your supervisor immediately if you

suspect that legal action is being seriously

contemplated.

■ Have clear and comprehensive policies in

your department.

■ Perform duties on time. ■ Take out insurance. ■ Stick to the facts in all dealings with

clients.

■ Do not get personally involved with

offenders.

■ Be familiar with revocation procedures. ■ Keep out of politics.

■ Advise officers on ethical practices. ■ Do not act as a police officer. ■ Avoid transporting offenders when possible. ■ Ensure safeguards for client property.

It behooves probation/parole officers to note

these words of advice from legal professionals

in the field. On the other hand, a word of

caution is in order. Knowledge of legal responsibilities and awareness of possible liabilities

could lead an officer to the path of overcaution amounting to inaction. This should be

avoided because reluctance or failure to perform one’s duties can often be more damaging than acting incorrectly. In case of doubt,

the general principle is to be guided by the

principle of fundamental fairness in decisionmaking, whether that decision is made by

a probation/parole officer or a supervisor.

Fundamental fairness is the essence of due

process and should go a long way toward

minimizing liability if a lawsuit arises.

■■■

A FINAL WORD Lawsuits are a burden. They cause anxiety, drain time, cost money, and take a

heavy toll on parties involved. A countersuit

by the probation/parole officer in retaliation is a possibility, but that merely compounds the problem, generates anxiety, and

leads to more expenses. Avoidance of lawsuits through proper job performance and

fundamental fairness is the wiser option as

probation/parole officers continue to discharge their duties and responsibilities in a

time of legal challenge and constant change. 

Note

1. 444 U.S. 275 (1980).
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

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CONCEPTS

Aquick examination of any telephone

directory will reveal an almost bewildering array of courts. No matter where the

reader is within the United States, he or she

is within the territorial or geographic jurisdiction of at least one state court and one

federal district court. Given their work

with the courts and exposure to legal liabilities, it is important that probation/parole

officers gain a good working knowledge of

the various levels of courts and basic legal

concepts. This appendix seeks to do that.

Space and function limitations do not permit us to explain the specific power of each

of the many types of courts to pass upon

the actions of probation/parole officers.

However, an outline of state and federal

court systems can be presented.

■■■

I. THE COURT 

SYSTEM IN THE

UNITED STATES

The United States has a dual court system: federal and state. This is, however,

a misnomer because in reality the United

States has 52 different systems comprising

the court systems of the 50 states, the federal

government, and the District of Columbia.

Nonetheless, for the purpose of an overview,

dividing courts into federal and state suffices.

A. The Federal Court System

There are three layers to the federal system

of courts of general jurisdiction. At the top

of the hierarchy is the Supreme Court of the

United States. Except for a few situations in

which cases can be heard originally by the

Supreme Court, it is exclusively an appellate

or reviewing court. The Supreme Court is

composed of nine Justices, who hear and

decide all cases as one body (en banc).

At the base of the federal system are 94 district courts, which, in 1999, had 646 judges.

Each state has at least one federal district

court; no federal court district crosses state

lines. Most districts have more than one

active federal district judge. 

As an adjunct of the district courts, Congress

created the United States magistrate system

to afford workload relief to the district judges.

Magistrates have limited powers, and many

are connected with the preliminary stages

of criminal cases, such as issuing search and

arrest warrants, holding bail hearings, and

conducting preliminary hearings. Of special

relevance here is the fact that, in some federal districts, magistrates are called upon to

make a preliminary assessment of the merit

of Section 1983 cases.

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

of Appeals for the District or Columbia. The

size of the bench in each appellate “circuit”

varies. Altogether, as of 1999, the courts of

appeals were authorized to have 179 active

circuit judges. Most court of appeals cases

are decided by “panels” of at least three

judges. (Panels may include district judges

and circuit judges who are not on the court’s

active roster.) When court of appeals panels

reach different conclusions on points of law,

and in other circumstances, courts of appeals

might meet en banc.

B. State Court Systems

If examined in any degree of detail, the court

systems of the 50 states and the District of

Columbia appear to be highly idiosyncratic.

Fortunately, the state systems are enough like

each other and the federal court system to

make quick summary possible.

A supreme court is at the pinnacle of each

state’s system. Texas and Oklahoma have

specialized supreme courts; in each, there is

one court of last resort for civil cases and a

different one for criminal cases. In Maryland

and New York, the highest court is called

the court of appeals.
194CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

The states call their general jurisdiction trial

courts by many different names; sometimes

more than one name is used in a state.

Circuit court, district court, and superior

court are the most popular choices. Most

states have an even lower level of original

jurisdiction courts, to which have been

applied a greater variety of names. Courts

at this level have limited and/or specialized

jurisdiction. In many cases, they are courts

not of record. Typically, the procedures

in such courts are less formal than those

observed in the courts of general jurisdiction.

A majority of states have a layer of appellate

courts below the Supreme Court.

■■■

II. THE APPEAL

PROCESS With rare exceptions, cases enter the

federal and state judicial systems at

the trial court level. At that level, a jury—

or the judge in cases being heard without a

jury—determines the facts of the case based

on the evidence presented. By applying the

facts to the settled, applicable law, the judge

or jury determines the outcome of the suit.

It is axiomatic that every case has a winner

and a loser. A party seeks review, and possible reversal, of an unfavorable judgment by

appealing it up the judicial hierarchy. In

states without an intermediate appellate

court, all appeals are heard by the supreme

court. Courts of appeal do not hear further

evidence; generally, they do not reevaluate

the evidence presented in the trial court.

Their function is to determine errors of law

and give a remedy for prejudicial but not

harmless errors.

A large majority of the cases filed in any court

system are finally decided at the lowest level.

Appeal is more a potential than an actual part

of the usual case. Of those cases appealed,

most are found to have been rightly decided

at the level below, or otherwise not subject

to reversal.

The dual court systems—federal and state—

merge at the Supreme Court of the United

States. Because the supremacy clause of the

Constitution makes the Constitution the

“supreme Law of the Land,” and because

the Supreme Court decides the meaning of

the Constitution, that body can review state

supreme court decisions insofar as they

pass on claims or defenses founded on the

Constitution or laws enacted under its

authority. Conversely, 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,

state courts may not decide a case contrary

to the Constitution; the clause specifically

requires state court judges to observe the

Constitution, and they take an oath to do

so. Second, unless precluded by a federal law

from doing so, claims arising under federal

law may be heard in state as well as federal

courts; state courts have concurrent jurisdiction over most federal causes of action,

including Section 1983 cases. This has

proved to be of limited practical significance, however, because most plaintiffs have

preferred to have federal courts hear their

federal claims. (In certain, limited circumstances, federal courts have been authorized

by Congress to hear cases originally brought

in state court.)

The reader should also be aware of the concept of precedent. While the immediate

function of every judicial decision is to settle

the rights of the parties before the court, a

secondary function is to forecast how subsequent, similar cases will be decided so that

other persons can conform their conduct

to the demands of the law. This predictive

aspect is the precedential value of a case. As

a result of the hierarchical structure of court

systems, the precedential value of a case—
195

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and often its persuasiveness—varies directly

with the level of the court that decided it.

The Supreme Court of the United States

hands down the decisions of greatest future

significance; trial courts render decisions that

have comparatively slight utility as precedent.

From these facts and principles, it is possible

to distill guidelines concerning the relevance

of the court decisions cited in this book, or

found elsewhere, to the individual reader.

■■■

III. THE EFFECT OF

JUDICIAL DECISIONS

The jurisdiction of every American court

is limited in some way. One type of

limitation is territorial or geographic. In a

strict sense, therefore, each judicial decision

is authoritative and has precedential value

only within the geographic limits of the area

in which the deciding court is authorized to

function. Hence:

■ United States Supreme Court decisions

on questions of federal law and the Constitution are binding on all American courts

because the whole country is under its

jurisdiction.

■ Federal court of appeals decisions on

such issues are the last word within the

circuit if there is no Supreme Court action.

The First Circuit Court of Appeals, for

example, settles federal issues for Maine,

Massachusetts, New Hampshire, Rhode

Island, and Puerto Rico, the areas to

which its jurisdiction is limited.

■ When a district court encompasses an

entire state, as is the case in Maine, its

assessment of federal law (again barring

appellate action) produces a uniform rule

within the state. In a state like Wisconsin,

however, where there are multiple districts,

there can be divergent rules.

The same process operates in the state court

systems. There is one regard, however, in

which state supreme court decisions are recognized as extending beyond state borders.

Since the Constitution declares the sovereignty of the states within the areas reserved

for state control, the court of last resort of

each state is the final arbiter of issues of

purely local law. The meaning that the

Supreme Court of California gives to a state

statute, for example, will be respected even

by the United States Supreme Court as

authoritative.

The existence of dual court systems, state

and federal, and the limited jurisdictional

reach of the vast majority of courts make it

practically inevitable that the courts will render conflicting decisions on a single point of

law. A core function of the appellate process

is to provide a forum for resolving these

conflicts. Indeed, the existence of a conflict

in the law is a strong argument for securing

appellate review of an unfavorable decision.

But an unresolved conflict is just that—

unresolved—and each competing decision

remains effective within the jurisdiction of

the court that decided it. As this monograph

illustrates, there are few Supreme Court

cases on probation and parole issues, and

other courts are in conflict on some points.

The individual reader should take particular

note of the rule in effect for the area in

which he works, if one is given.

The reader should be most interested in the

local rule for two reasons. First, under the

concept of stare decisis, courts decide new

cases in accordance with prior cases—with

precedent. The locally effective rule can be

expected to define the conduct standards to

which the probation/parole officer will be

held if he becomes a defendant. Second, if

there is a change in the law, as sometimes

occurs, proof that the defendant was acting

within the law will go far toward establishing a good faith defense, if that is applicable.
196CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

The reader cannot, however, safely ignore

decisions from other jurisdictions. Again,

there are two reasons. First, there may be

no settled law on an issue in his or her area.

When that issue is presented to a local court

initially—a case of first impression— the

local federal or state court will probably

decide it on the basis of the dominant or

“better” rule being applied elsewhere.

The second reason requires recognition that

the law is not stagnant but evolving. Over

a period of time, trends develop in the law.

When a particular court senses that its prior

decisions on a point are no longer in the

mainstream, it may give consideration to

revising its holdings. The decisions reported

here may enable the reader to spot a trend

and anticipate what local courts may be

doing in the future.

■■■

IV. BASIC LEGAL 

CONCEPTS Knowledge of some legal concepts and

terminology is necessary for an understanding of the legal responsibilities and liabilities of probation/parole officers. A basic

collection of these concepts is contained in

Appendix B (Glossary of Legal Terms). Some

concepts need to be discussed more extensively here in contrastive style so they may

be better explained.

A. Civil versus Criminal Cases

All litigation falls into one of two broad categories, civil or criminal. A probation/parole

officer could face either a civil or a criminal

suit as a result of his or her work.

If the government charges that the officer

is a wrongdoer because he or she violated

some criminal law, the probation/parole officer will become accused—the defendant—

in a criminal case. It will then be the

government’s responsibility to prove

“beyond a reasonable doubt” that: (1) a

crime has been committed; and (2) the

defendant committed it. If the government

does not carry its burden of persuasion in

the trial court, the case will normally end

when the trier of fact returns a verdict of

“not guilty.” The government’s right of

appeal in criminal cases is quite restricted.

The person, if any, whose injury gives rise

to the criminal charge is known as the complainant. Complainants are not formal parties in criminal cases and usually have no

role other than as witnesses.

On the other hand, no civil case can be

instituted other than by the person or entity

(or a proper representative) claiming to have

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

money from the defendant as damages for

the harm done. In another large group of

civil cases, the plaintiff seeks an injunction,

which is an order from the court requiring

the defendant in the future to behave in a

specified way.

The civil case plaintiff must prove that (1)

the defendant owed some legal or contractual duty or obligation; and (2) some breach

of duty by the defendant resulted in harm—

to the plaintiff. The nature and magnitude

of the duty, the breach, and the harm will

be considered in determining the type and

size or scope of the remedy to be given the

plaintiff. In order for the plaintiff to prevail,

he or she need only prove the case by a “preponderance of the evidence.” This is a much

lighter burden of persuasion than in criminal cases; the evidence need only show that

it is more likely than not that the defendant

breached some duty, causing harm. Civil

plaintiffs and defendants have equal rights

of appeal.
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B. Criminal Conviction versus

Civil Liability

Conviction in a criminal case is a much more

serious matter than being found civilly liable.

In addition to the opprobrium that the criminal defendant may suffer as a result of conviction, these differences should be noted.

Type of penalty. Monetary penalties are possible in either type of case: damages in a civil

action, a fine in a criminal case. Additionally,

probation, incarceration, and alternative

community service may be imposed on the

defendant upon conviction.

Collateral effects. Criminal conviction carries

with it civil disabilities, meaning that the

convicted person may be barred by state or

federal statute from exercising certain rights

during and even after service of the sentence.

Such divested rights usually include the right

to vote, to be a member of a jury, to be a

guardian, to hold public office, and to obtain

certain types of employment. If the offense

of which the defendant is convicted is a

felony, in some jurisdictions that conviction

constitutes grounds for divorce. Civil liability

carries no such disabilities; hence, its effect is

not far reaching.

Evidentiary effects. Conviction in a criminal

case may be introduced as evidence in a subsequent civil case arising out of the same

incident, but a judgment of civil liability

cannot be used as evidence in a subsequent

criminal case.

For example, X, a probation officer, pleads

guilty to a criminal charge of unlawful

search and seizure of a probationer’s apartment. That guilty plea may be used as evidence later in a state tort liability case that

the probationer may bring against X. This is

because the amount of evidence needed to

convict in criminal cases is “beyond reasonable doubt,” which is much higher in degree

of certainty than the mere “preponderance

of evidence” needed in civil cases.

On the other hand, if X is found civilly

liable, the finding cannot be introduced

in evidence in a subsequent criminal case

against X arising out of the same act.

C. Federal versus State

Jurisdiction

Suppose a probationer or parolee wants to

file a civil case against a probation/parole

officer. How is the lawyer to know whether

the case should be filed in a state or a federal court? The answer is that it normally

depends on the law being invoked. If the

case alleges a violation of federal law, it is

filed in a federal court; if the alleged violation is of a right or interest created by state

law, it is filed in a state court. The chapters

on legal liabilities talk about the two types

of civil cases for damages usually brought

against probation/parole officers:

■ Tort cases, which are usually filed in state

courts based on state tort law.

■ Section 1983 (civil rights) cases, which are

usually filed in federal courts because the

basis is an alleged violation of Section

1983 of 42 U.S. Code.

In criminal cases, the same basic rule

applies. If an act is a violation of federal

law, the federal government must prosecute.

Conversely, if the act is a violation of state

law, the state will prosecute in a state court.

However, if the act violates both federal and

state criminal laws (such as when a probation/parole officer illegally arrests a probationer or parolee), both governments may

prosecute. There is no double jeopardy

because of the “dual sovereignty” doctrine,

which says that states and the federal government are both sovereign entities and,

therefore, may prosecute the same act separately. This does not usually happen in fact

because federal or state prosecutors as a matter of policy generally disfavor subsequent

prosecutions if they are satisfied with the
198CIVIL LIABILITIES AND OTHER LEGAL ISSUES FOR PROBATION/PAROLE OFFICERS AND SUPERVISORS

results in the first case. Successive prosecutions, however, are constitutional and have

been resorted to in a number of cases.

D. Jurisdiction versus Venue

The meaning of these terms can be confusing. Jurisdiction refers to the power of a

court to hear a case. A court’s jurisdiction is

defined by the totality of the law that creates

the court and limits its powers; the parties to

litigation cannot invest the court with jurisdiction it does not possess. Defects in the

subject matter jurisdiction of a court cannot

be waived by the parties and can be raised at

any stage of litigation, including on appeal.

The court can raise the question of its jurisdiction sua sponte (meaning on its own

motion). In order to render a valid judgment against a person, a court must also

have jurisdiction over that person. Defects

in obtaining personal jurisdiction, however,

can be waived by the defendant’s voluntary

act, or by operation of law as when the defendant fails to assert his rights in a timely or

proper manner.

The concept of venue is place oriented. It

flows from the policy of the law to have

cases tried in the locale where they arose,

where a party resides, or where another consideration makes it reasonable. Legislation

establishes mandatory venue for some types

of cases and preferred venue for others. But,

within a court system, venue may be proper

in any court with subject matter jurisdiction

and jurisdiction over the defendant. Venue

defects are almost always waived by the

defendant’s failure to object promptly.

An example of the interplay of these concepts may help make them clear. Texas law

requires that felonies be prosecuted in the

state district courts and in no other type of

court. Another law provides, in general, that

felonies be prosecuted in the county where

the offense occurred. The first of these provisions is jurisdictional, while the second

deals with venue.

E. Statutory Law versus

Administrative Law

Statutory law is law passed by the state or

federal legislature, such as a state tort law

or Section 1983), while administrative law

refers to rules and regulations promulgated

by governmental agencies such as probation

and parole offices. Once properly promulgated, these rules and regulations have the

force and effect of statutory law and are

binding on that agency, its officers, and

third parties dealing with them unless and

until declared illegal or unconstitutional by

the courts. The same is true, although to a

lesser extent, with agency policies, guidelines, and administration directives. Failure

to follow agency regulations or guidelines

may lead to administrative action and, in

some cases, civil liability. Conversely, compliance with agency regulation usually establishes good faith or reasonableness of an

officer’s action, hence negating liability.

F. State Tort Law versus Section

1983

A tort is civilly wrongful conduct that causes

injury to the person or property of another,

in violation of a duty imposed by law. The

great bulk of tort law is made in the courts

rather than in the legislature. In the states, the

usual legislative role is to provide the judicial

framework for tort litigation. Substantive tort

law was inherited with the bulk of the English

common law, and courts have been refining

and modernizing it since. In Texas, for example, no statute defines the elements of a civil

assault, although laws do identify the courts

authorized to hear assault cases and limit the

time within which the cases must be filed.

Some specific torts, however, are legislatively

created, such as the wrongful death action.

The federal pattern, in general, differs from

the state pattern. Tortious conduct normally

must be defined by Congress in order to be

actionable in federal courts. (When federal

district courts hear tort cases—automobile

negligence cases are the most common—
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they apply state tort law in determining the

rights of the parties.) Section 1983 is, in

essence, one statutorily created federal tort.

In Section 1983 of 42 U.S. Code, Congress

authorized suits for damages (and other

relief) by any person deprived of rights

given by the Constitution or federal law.

The action lies against any person (and substate units of government)—usually a government employee who acts under color of

law, i.e., who has apparent official authority

for his conduct. The frequency with which

Section 1983 has been used has made it a

major concern for probation/parole officers.

Because of the dual sovereignty doctrine, the

same act, such as the groundless arrest of a

parolee, might be a state tort—such as false

arrest/imprisonment—and a Section 1983

violation. Two suits might result. Both of

these potential sources of civil liability are

treated separately in previous chapters.

G. Absolute versus Qualified

Immunity

Both absolute and qualified immunity are

defenses in civil litigation. They differ in

the degree of protection they afford and by

whom they may be asserted. The proper

assertion of absolute immunity normally

will derail a case at the beginning, while

qualified immunity may not.

Legislators, judges, and prosecutors may

assert the absolute immunity defense concerning their official duties in those positions. While “absolute” technically may be

a misnomer, it is close enough to be apt.

The officer seeking to claim absolute immunity must establish his or her official position and that the action complained of was

legislative, judicial, or prosecutorial, as the

case may be.

“Qualified immunity” is the term applied

to the protection that other public officials

have. It has different meanings in state tort

and Section 1983 cases. In state tort cases, it

means that an official’s act may be immune

from liability if the act is discretionary, but

not if it was ministerial. In addition, the act

must have been within the scope of authority and performed in good faith. In Section

1983 cases, qualified immunity means that

the officer is immune only if he or she acted

in good faith. Good faith, in turn, means

that the officer did not violate a clearly

established statutory or constitutional right

of which a reasonable person would have

known.

It is the policy of the law that each person

should be held accountable for the consequences of his or her acts. Immunity defenses conflict with this philosophical bent and,

therefore, are not favored by the courts. This

is evident in the hesitancy with which they

have extended absolute immunity to parole

boards that, in their releasing decisions at

least, exercise a most judgelike function.

Individual probation/parole officers generally can establish only qualified immunity.

H. Basic Constitutional Rights

Most of the cases (but particularly Section

1983 cases) filed against probation/parole

officers are based, directly or indirectly, on

an alleged violation of a constitutional right.

It is therefore helpful to be reminded of the

basic rights under the Bill of Rights and the

14th amendment.

First Amendment

1. Freedom of religion.

2. Freedom of speech.

3. Freedom of the press.

4. Freedom of assembly.

5. Freedom to petition the government for

redress of grievances.

Fourth Amendment

1. Prohibition against unreasonable searches

and seizures.
200

CIVIL LIABILITIES AND

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OFFICERS AND SUPERVISORS

Fifth Amendment

1. Right to a grand jury indictment for capital or otherwise infamous crime.

2. Right against double jeopardy.

3. Right against self-incrimination.

4. Prohibition against the taking of life, liberty, or property without due process of

law.

5. Right against the taking of private property

for public use without just compensation.

Sixth Amendment

1. Right to a speedy and public trial.

2. Right to an impartial jury. 

3. Right to be informed of the nature and

cause of the accusation against him.

4. Right to be confronted with the witnesses

against him.

5. Right to have compulsory process for

obtaining witnesses in his favor.

6. Right to have the assistance of counsel.

Eighth Amendment

1. Prohibition against excessive bail.

2. Prohibition against cruel and unusual

punishment.

14th Amendment

1. Right to privileges and immunities of

citizens.

2. Right to due process.

3. Right to equal protection of the laws.

The right to privacy is a basic constitutional

right, but is not one of the rights explicitly

mentioned in the Constitution. The Court,

however, has said that the right to privacy is

implied from provisions of the 1st, 4th, 5th,

6th, 9th, and 14th amendments.
APPENDIX B

Glossary of Legal Terms

APPENDIX B

203

APPENDIX

B

GLOSSARY OF

LEGAL

TERMS

Abuse of discretion. No clear standard exists

but, generally (1) no reasonable person would

take the view adopted by the decisionmaker,

or (2) the decision was made for some arbitrary reason wholly unrelated to the statutory standard, or (3) the decision was made in

contradiction of applicable policy or statutes.

Absolute immunity. The exemption enjoyed

by certain government officials from liability

in a lawsuit by virtue of the position they

occupy. This means that if a civil suit is

brought, it will be dismissed by the court

without going into the merits of the plaintiff’s claim. Legislators, judges, and prosecutors enjoy absolute immunity for the

decisions they make in the performance

of their jobs.

Administrative law. Rules and regulations

promulgated by governmental agencies

instead of by legislative bodies. Once promulgated, these rules and regulations have the

force and effect of law and are binding on

that agency, its officers, and those who deal

with them, unless declared illegal or unconstitutional by the courts. Examples are rules

and regulations issued by probation and

parole agencies. 

Civil cases. Cases brought to recover some

civil right or to obtain redress for some

wrong. Tort actions are examples of civil

cases. All noncriminal cases are civil cases. 

Civil Rights Attorney’s Fees Awards Act of

1976. A federal law (sometimes known as

Section 1988) that allows the court to award

attorney’s fees to the prevailing party in some

types of federal suits, particularly Section

1983 cases.

Civil rights cases. Another name given to

Section 1983 cases. Refer to Section 1983,

below, for a more extended definition. 

Color of law. Actions taken under “color of

law” have the appearance but not the reality

of being legally justified. The term suggests

the misuse of power possessed by virtue of

state law and that the misuse is possible only

because the alleged wrongdoer is clothed

with the apparent authority of the state. The

term includes conduct actually authorized.

Generally, anything a probation/parole officer does in the performance of assigned

duties, whether or not actually authorized,

is done under color of law.

Damages. Monetary compensation to the

person who suffers loss or harm from an

injury; a sum recoverable as amends for a

wrong to a person, his property, or his rights.

Damages (nominal, compensatory, or punitive) may be awarded to the plaintiff in state

tort or Section 1983 cases.

Defendant. The party against whom an action

is brought; the party denying, opposing, resisting, or contesting the action brought by the

plaintiff or the state. Probation/parole officers

may become defendants in several kinds of

cases arising out of improper task performance. 

De novo. The hearing of a case anew, afresh,

a second time.

Discretionary acts. Acts that require personal choice and judgment, such as deciding

on policies and practices. In general, the

consequences of discretionary acts cannot

result in liability, unlike mandatory or ministerial acts. 

Double jeopardy. A defense of constitutional

origin in a criminal prosecution claiming

that the defendant is being placed on trial

for a second time for the same offense for

which he has previously been tried. The

double jeopardy defense, however, does not

apply where one case is a criminal prosecution and the other prosecution is made successively under state and federal jurisdiction,

or vice versa. 

Dual court system. The court system in the

United States where there is one court system for federal cases and separate systems for

state cases.
204

CIVIL LIABILITIES AND

OTHER LEGAL ISSUES FOR PROBATION/PAROLE

OFFICERS AND SUPERVISORS

Due process. A courser of legal proceedings

according to those rules and principles established in our system of justice for the enforcement and protection of private rights. In the

most simple of terms, fundamental fairness. 

Exclusionary rule. A rule that prohibits the

use in criminal proceedings of evidence of

any nature that was obtained in violation of

the fourth amendment. The rule has been

extended to include any evidence subsequently discovered solely as the result of the

illegally obtained evidence.

Good faith defense. This term has different

meanings in civil liability cases. In state tort

cases, good faith means that the officer acted

with honest intentions in the belief that the

action taken was appropriate. In Section

1983 cases, however, good faith means that

the officer did not violate a clearly established

constitutional or statutory right of which a

reasonable person would have known. 

Governmental immunity. Exemption of government agencies or entities from liability

for their governmental, but not their proprietary, functions. 

“Hands off” doctrine. The doctrine adopted

by the courts since the mid-1960s to entertain

cases filed by prisoners and others in the criminal justice process seeking redress of grievances or monetary liability against government

officials. The “hands on” doctrine has led to

the “open door” era in corrections and the

whole field of criminal justice litigation.

Immunity. A general term referring to exemption from tort liability or other forms of

lawsuits. Immunity can be governmental or

official; absolute, qualified, or quasi-judicial.

Indemnification. To make good the loss of

another; in the case of a public employee

who is sued, indemnification refers to payments to the officer from the government to

fully or partially pay the damages assessed

against him.

Jurisdiction. The authority of a court to hear

and decide a case.

Legal liabilities. Refers to the various civil

and criminal proceedings to which a probation/parole officer may be exposed if he

breaches any of his legal responsibilities

through malfeasance (the commission

of some lawful act), or nonfeasance (the

nonperformance of an act that should be

performed).

Legal responsibilities. Duties and obligations

imposed on probation/parole officers by

the United States Constitution, the state

constitution, federal laws, state laws, court

decisions, administrative rules, and agency

guidelines that, if breached, give rise to

legal liabilities. 

Ministerial act. An act that consists of the

performance of a duty, in which the officer

has no choice but to carry out the act (e.g.,

the duty to provide a probationer/parolee a

revocation hearing before revoking probation/parole). Nonperformance of a ministerial act, unless in good faith, can lead to

liability. 

Negligence. The doing of that which a reasonably prudent person would not have

done, or the failure to do that which a reasonably prudent person would have done in

like or similar circumstances; failure to exercise that degree of care and prudence that

reasonably prudent persons would have exercised in similar circumstances. Negligence

can lead to liability under state tort law or

Section 1983. 

Official immunity. Exemption of certain

classes of officials from tort liability or lawsuits because of the functions they perform.

Plaintiff. The person who initiates a civil lawsuit. In a state tort or a Section 1983 action,

this is the person who alleges that he has been

injured in some way or has rights violated by

the actions of the probation/parole officer. 
205

APPENDIX

B

GLOSSARY OF

LEGAL

TERMS

Preponderance of evidence. That evidence

which, in the judgment of the jurors or

judge, is entitled to the greatest weight,

appears to be more credible, has greater

force, and overcomes the opposing evidence.

The side with the preponderance of evidence

wins a civil case. Preponderance denotes

more than quantity.

Probable cause. That amount of evidence,

supported by circumstances, that is sufficiently strong to warrant a cautious person

to believe that an accused is guilty of the

offense with which he or she is charged.

Qualified immunity. Exemption from liability under some circumstances. In state tort

law, this means that an official’s act may be

immune from liability if discretionary but

not if ministerial. In addition, the act must

have been within the scope of authority and

performed in good faith. In Section 1993

cases, qualified immunity means that the

officer is immune only if he or she acted in

good faith. 

Quasi-judicial immunity. Officials who have

some functions of a judicial character and

some executive duties may be immune from

liability for the former duties, but not for

the latter. Example: Parole board members

have quasi-judicial immunity when making

decisions to release or not to release an

inmate, but only qualified immunity when

performing supervisory responsibilities. 

Respondeat superior. Refers to the responsibility of an employer for the acts or negligence of his employees or agents. Generally

not applicable when the government is the

employer.

Section 1983 case. A suit based on a federal

law enacted in 1871 seeking various remedies (among them monetary damages) from

a government officer on the grounds that the

plaintiff’s federal or constitutional rights have

been violated. Also referred to as “civil rights

cases,” they are usually tried in federal courts.

Special condition. A condition of probation

or parole that is not imposed as a matter of

course on all probationers or parolees but is

designed to meet a special rehabilitative need. 

Stare Decisis. A doctrine of law that states

that when a court decides an issue of law,

that decision will be followed by that court

and by the courts under it in subsequent

cases presenting similar circumstances. 

Statutory law. Laws passed by legislatures

instead of by other bodies or agencies. 

Tort. A wrong in which the action of one

person causes injury to the person or property of another in violation of legal duty

imposed by law.

Tortfeasor. A person who commits a tort;

a wrongdoer. 

United States Courts of Appeals. The courts

to which cases from the federal district

courts are appealed. There are 12 courts of

appeals, each serving a designated “circuit”

of several states (except for the District of

Columbia Circuit). From the courts of

appeals, cases are appealed to the United

States Supreme Court. 

United States District Courts. The lowest

courts in the hierarchy of general jurisdiction federal courts. This is where federal

cases, including Section 1983 cases, are

tried. There is a minimum of one district

court per state.

United States Supreme Court. The highest

court in the United States, to which appeals

from federal or state courts may be taken.

Composed of one Chief Justice and eight

associate justices who are appointed for life,

its decisions are binding on both state and

federal courts throughout the country. 

Venue. The place where the case is to be heard.