Justice of Department .S.U

JUSTICE OF DEPARTMENT Corrections of Institute National

CORRECTIONS OF INSTITUTE NATIONAL

LIABILITIES CIVIL

Supervisors and Officers Parole/Probation for Issues Legal Other and

Edition th4
Justice of Department .S.U

Corrections of Institute National

NW ,Street First 320

20534 DC ,Washington

Thigpen .L Morris

Director

Beauclair .J Thomas

Director Deputy

Keiser George

Division Corrections Community ,Chief

Faust Dorothy

Manager Project

Corrections of Institute National

gov.nicic.www
Liabilities Civil

Supervisors and Officers Parole/Probation for Issues Legal Other and

Edition th4

Lyons Phillip

Jermstad Todd

027037 .No Accession NIC

2013 March
 of Institute National the from 3U7G77C08 number agreement cooperative under developed was document This

 and authors the of those are document this in opinions or view of Points .Justice of Department .S.U ,Corrections

.Justice of Department .S.U the of policies or opinion official the represent necessarily not do
Contents

.....................................1Liabilities Legal Federal and State of Overview An 1. Chapter

.....................................13Cases Tort State :Law State Under Liability Civil 2. Chapter

......................................27 Cases 1983 § :Law Federal Under Liability Civil 3. Chapter

....................39 Indemnification and ,Fees’ Attorneys ,Representation Legal 4. Chapter

...........................55 Reports and Investigations Preparole and Presentence 5. Chapter

...........................................................................................81 Supervision 6. Chapter

.................................113 Status in Changes and ,Modifications ,Conditions 7. Chapter

..........................................................................................155 Revocation 8. Chapter

 Parole and Probation of Liability Concerning Trends Emerging 9. Chapter

........................................................................185 Supervision for Officers

..............................................................................203 Liability Vicarious 10. Chapter

............................................................215Supervisors for Liability Direct 11. Chapter

..............................................239 Supervisors of Acts for Liability Agency 12. Chapter

............................................................247Rights’ Inmates of Nature The 13. Chapter

.......................................257 Hearings Release Parole at Rights’ Inmates 14. Chapter

 by Committed Crimes for Officials Parole of Liability 15. Chapter

............................................................................275Offenders Released

.....................................................285Officials Board Parole for Immunity 16. Chapter

..............................291 Advice General and ,Concerns Specific ,Questions 17. Chapter

iii

1 CHAPTER

 AND STATE OF OVERVIEW AN

LIABILITIES LEGAL FEDERAL

 INTRODUCTION

 LAW STATE UNDER .I

 Law Tort State Under Liability Civil .A

 Law Tort State 1. 

 Laws Rights Civil State 2. 

 Law State Under Liability Criminal .B

 Officers Public at Specifically Aimed Provisions Code Penal State 1. 

 Acts Criminal Punishing Provisions Code Penal Regular 2. 

 LAW FEDERAL UNDER .II

 Liabilities Civil .A

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

 Rights Civil With Interfere to Conspiracy—1985 § ,Code .S.U the of 42 Title 2. 

Law the Under Rights Equal—1981 § ,Code .S.U the of 42 Title 3. 

 Liabilities Criminal .B

 Law of Color Under Rights of Deprivation—242 § ,Code .S.U the of 18 Title 1. 

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

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

 .YES? LAWS ABOVE THE OF ALL UNDER LIABLE HELD BE OFFICER AN MAY .III

 LIABLE HELD IF RESULTS DIFFERENT .IV

 CASES LIABILITY CIVIL IN DEFENDANTS POSSIBLE .V

 Defendant as Agency Government .A

 Defendants as Officers Individual .B

 Officers State 1. 

 Agencies Local of Officers 2. 

 CASES LIABILITY CIVIL IN AWARDED DAMAGES OF KINDS.VI

 Damages Compensatory or Actual .A

 Damages Nominal .B

 Damages Exemplary or Punitive .C

 SUMMARY

 NOTES

1

Liabilities Legal Federal and State of Overview An

1 CHAPTER

3

INTRODUCTION

 .varied and many are exposed be may officers parole/probation which to liabilities legal of array The

 liabilities these of overview An .varieties criminal and civil both of laws federal and state include They

1.–1 Table in depicted is

 administrative to subject be may officer the ,liability of sources statutory these to addition in that Note

 .policy agency or law state by defined are procedures Disciplinary .sanction of forms other or ,aldismiss ,demotion ,suspension ,transfer in result can that agency the within procedures disciplinary

 system justice criminal the in officer any about just and ,officers juvenile ,officials prison ,jailers ,ficersof Police .officers parole/probation to just not and officers public all to apply liabilities legal above The

 assume ,example For .act single a on based provisions above the of all or any for liable held be may

 be may she or he ,Conceivably .parolee a on force excessive uses unjustifiably officer parole a that

 acted she or he if conspiracy for liable be may she or He .provisions above the of all under liable

 constitutes which ,itself act the for as well as ,rights civil his of parolee the deprive to another with

 law federal under civilly and criminally prosecuted be may officer parole same The .deprivation the

 jeopardy double The .act same the for law state under liable civilly and criminally held be then and

 in only applies jeopardy double because liabilities multiple from her or him exempt cannot defense

 by offense same the for made are prosecutions criminal two when only and ,cases) civil not (criminal

 is act same the for law federal under then and state under prosecution Criminal .jurisdiction same the

 prosecuting second the that indicates often it ,occurs this If .frequency some with occurs and possible

 .prosecution first the in served not was justice that believes authority

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

 .law state or federal to according classified

 Law Federal and State Under Liabilities Legal of Classification 1.–1 Table

Law Federal Law State

 Civil

Liabilities

Rights of Deprivation for Action Civil—1983 § ,Code .S.U the of 42 Title 1. law tort State 1.

Rights Civil With Interfere to Conspiracy—1985 § ,Code .S.U the of 42 Title 2. laws rights civil State 2.

Law the Under Rights Equal—1981 § ,Code .S.U the of 42 Title 3.

 Criminal

Liabilities

Law of Color Under Rights of Deprivation—242 § ,Code .S.U the of 18 Title 1. officers public at specifically aimed provisions code penal State 1.

Rights Against Conspiracy—241 § ,Code .S.U the of 18 Title 2. acts criminal punishing provisions code penal Regular 2.

Activities Protected Federally—245 § ,Code .S.U the of 18 Title 3.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

1 CHAPTER

4

LAW STATE UNDER .I

 .criminal and civil :law state under liability of types basic two are There

 Law Tort State Under Liability Civil .A

 Law Tort State 1.

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

 .suffice should information following the ,overview

 ,obtained be may remedy a which for ,contract of breach than other ,wrong civil A “as defined is tort A

 in stand who persons on imposes law the that duty a of breach a; damages of form the in usually

1“.another one to relation particular a

 as such ,person a against wrongdoing a involve may Torts 

 ,death wrongful ,slander ,libel ,privacy of invasion ,imprisonment false ,arrest false ,battery ,assault

 be may tort A .trespass or ,conversion ,arson as such ,property against or; prosecution malicious and

 damage causes that act tortious a for liable held be therefore may officers parole/Probation .ligenceneg by caused or) harm or event certain a cause to actor the of intent the on based acts (intentional

 referred sometimes are ,cases federal ,actions 1983 § that Note .another of property or person the to

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

 Laws Rights Civil State 2.

 laws federal various the replicating either ,own their of laws rights civil passed have states Many

 Federal the ,example For .rights protected of categories new devising or enacted been have that

 ,origin national ,color ,religion ,race of basis the on discrimination prohibits 1964 of Act Rights Civil

 be also may they but ,government federal the by enforceable are laws These .pregnancy and ,sex

 punishment or penalty The .statutes state as enacted been also have they if state the by enforceable

 .level state the at is ,therefore ,statutes state such through imposed

 Law State Under Liability Criminal .B

 Officers Public at Specifically Aimed Provisions Code Penal State 1.

 for designed specifically code penal state the of provision a under come can liability criminal State

 an commits employment or office his of color under acting servant public a that states that” pressionOp Official “on provision a contains Code Penal Texas the of 39.03 § ,example For .officers public

 :he if offense

 another impedes or denies intentionally .b; unlawful is knows he that lien or ,assessment ,siondisposses ,seizure ,search ,detention ,arrest to or mistreatment to another subjects Intentionally .a

 is conduct his knowing ,immunity or ,power ,privilege ,right any of enjoyment or exercise the in

.2harassment sexual to another subjects intentionally .c or; unlawful

 if asked counsel legal agency parole/probation and general attorneys state to sent questionnaire A

 parole/probation for liability to pertaining statutes have states few a only that show results The .eralgen in officers public and ,parole ,probation for liability criminal for providing statutes had states their

 concerning statutes have states the of percent 84 but ,cases both in percent 8 ,specifically officers

 .general in officers public of liability criminal the

 Acts Criminal Punishing Provisions Code Penal Regular 2.

 be also may officers parole/probation ,officials public at only aimed provisions specific to addition In

 ,codes criminal state The .laws criminal state the of provisions the under person other any like liable

 so and ,assault ,manslaughter ,murder commits who anyone on liability criminal impose ,example for

 .person other any against as forth
Liabilities Legal Federal and State of Overview An

1 CHAPTER

5

LAW FEDERAL UNDER .II

 Liabilities Civil .A

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

 State any of ,usage or ,custom ,regulation ,ordinance ,statute any of color under ,who person Every

 United the of citizen any ,subjected be to causes or ,subjects ,Columbia of District the or Territory or

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

 ,law at action in injured party the to liable be shall ,laws and Constitution the by secured immunities

 a against brought action any in that except ,redress for proceeding proper other or ,equity in suit

 not shall relief injunctive ,capacity judicial s’officer such in taken omission or act an for officer judicial

 the For .unavailable was relief declaratory or violated was decree declaratory a unless granted be

 shall Columbia of District the to exclusively applicable Congress of Act any ,section this of purposes

.3Columbia of District the of statute a be to considered be

 under liability of discussion exhaustive an for chapter that to Refer .section this under filed cases ityliabil civil of number overwhelming the of because 3 Chapter in separately discussed is section This

 .law federal

 Rights Civil With Interfere to Conspiracy—1985 § ,Code .S.U the of 42 Title 2.

 the for ... conspire “who persons more or two any against remedy civil a provides) 3(1985 Section

 of or ,laws the of protection equal the of persons of class or person any ... depriving of purpose

4“....laws the under immunities and privileges equal

 who individual any to awarded be to damages civil for provides law this 1861, in Congress by Passed

/probation a that Note .rights civil her of her deprive to conspired persons more or two that show can

 civil her of person a depriving actually for only not liable civilly held be therefore may officer parole

 .(1985 § under (rights civil his of person that deprive to conspiring for also but ,)1983 § under (rights

 ,section this Under .separately punished be may therefore and distinct and separate are acts two The

 ,act the commit to agreed actually and minds the of meeting a had officers the that shown be must it

 felonious is act the ,cases most In .proven be need goal common a of statement exact no although

 .rights civil her of plaintiff the depriving at aimed is and) misdemeanor a to opposed as (severity its in

 of her deprive to intended purposely defendants the that prove to able be also must plaintiff The

 the because officers public against used seldom is ,however ,section This .law the of protection equal

 ,Moreover .coconspirators of testimony the through except prove to difficult often is conspiracy of act

 which ,discrimination invidious is conspiracy the of objective the which in situations to limited is it

 parole/probation the that trial a in establish to plaintiff a for difficult is It .court in prove to difficult is

 .origin national or ,race ,sex on based discriminatory was action s’officer

 Law the Under Rights Equal—1981 § ,Code .S.U the of 42 Title 3.

 and State every in right same the have shall States United the of jurisdiction the within persons All

 equal and full the to and ,evidence give ,parties be ,sue to ,contracts enforce and make to Territory

 white by enjoyed is as property and persons of security the for proceedings and laws all of benefit

 of exactions and ,licenses ,taxes ,penalties ,pains ,punishment like to subject be shall and ,citizens

 .other no to and ,kind every

***

 terms ,privileges ,benefits all of enjoyment the and ,contracts of termination and ,modification ,manceperfor ,making the includes” contracts enforce and make “term the ,section this of purposes For

.relationship contractual the of conditions and
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

1 CHAPTER

6

***

.5law State of color under impairment and nationdiscrimi nongovernmental by impairment against protected are section this by protected rights The

 that show to had plaintiff the ,Originally 1983. § than earlier year a 1870, in passed was section This

 .plaintiffs potential of number the limiting thus ,race his of because against discriminated was he

 greater of be should provision punishments like the ,However .)provisions benefits equal and tractscon its under (cases discrimination housing and employment in used widely been has 1981 Section

 been have officials system justice criminal because authorities parole and probation for significance

.6mandate its violating for liable held

 Liabilities Criminal .B

 Law of Color Under Rights of Deprivation— 242 § ,Code .S.U the of 18 Title 1.

 any subjects willfully ,custom or ,regulation ,ordinance ,statute ,law any of color under ,Whoever

 ,rights any of deprivation the to District or ,Possession ,Commonwealth ,Territory ,State any of person

 to or ,States United the of laws or Constitution the by protected or secured immunities or ,privileges

 of reason by or ,alien an being person such of account on penalties or ,pains ,punishments different

 or title this under fined be shall ,citizens of punishment the for prescribed are than race or ,color his

 in committed acts the from results injury bodily if and; both or ,year one than more not imprisoned

 ,years ten than more not imprisoned or title this under fined be shall ,fire or ,explosives ,weapon ousdanger a of use threatened or ,use attempted ,use the include acts such if or section this of violation

 include acts such if or section this of violation in committed acts the from results death if and; both or

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

 years of term any for imprisoned or ,title this under fined be shall ,kill to attempt an or ,abuse sexual

.7death to sentenced be may or ,both or ,life for or

 civil his of another deprives actually who officer any against action criminal for provides section This

 acting ,officer the that show to government the requires section this of element essential An .rights

 civil s’one of deprivation the to amounted that act an commit actually did” ,law any of color under“

 under acting been have must defendant the) a (:following the are 242 § of elements Essential .rights

 ;laws federal or Constitution States United the by secured right any of deprivation a) b; (law of color

 .rights of victim the deprive to defendant the of part the on intent specific) c (and

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

 ,State any in person any intimidate or ,threaten ,oppress ,injure to conspire persons more or two If

 or right any of enjoyment or exercise free the in District or ,Possession ,Commonwealth ,Territory

 having his of because or ,States United the of laws or Constitution the by him to secured privilege

 or; same the exercised

 intent the with ,another of premises the on or ,highway the on disguise in go persons more or two If

 shall They—secured so privilege or right any of enjoyment or exercise free his hinder or prevent to

 the from results death if and; both or ,years ten than more not imprisoned or title this under fined be

 ,kidnap to attempt an or kidnapping include acts such if or section this of violation in committed acts

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

 be may or ,both or ,life for or years of term any for imprisoned or title this under fined be shall they

 .8death to sentenced

 conspiracy a of existence the) 1 (:following the requiring as section this interpreted have courts The

 victims intended the of more or one) 2; (intimidate or ,threaten ,oppress ,injure to is purpose whose

 or exercise free the at directed be must conspiracy the) 3 (and; citizen States United a be must
Liabilities Legal Federal and State of Overview An

1 CHAPTER

7

 States United the or laws federal under privilege or right any of citizen a such by enjoyment

 .Constitution

 of one depriving of act the punishes 242 § that is 241 § and 242 § between distinction main The

 ,conspiracy as Inasmuch .rights of one deprive so to conspiracy the punishes 241 § whereas ,rights

 .alone acting person a by committed be cannot 241 § ,participants two least at requires ,definition by

 such no is there” ,law any of color “the acting be to officer the requires 242 § although ,Moreover

 .violation 241 § a commit can person private a ,hence; 241 § under requirement

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

 interfere forcibly who officers public to applies ,therefore ,and individuals all to applies section This

 :as activities protected federally such with

 .office elective an for running or Voting■ 

 .programs administered-government in Participating■ 

 .employment federal of benefits the enjoying or for Applying■ 

 .court federal a in juror as Serving■ 

.9assistance financial federal receiving program any in Participating■ 

 bodily Should .both or ,year 1 than more not of imprisonment or fine a carry 245 § of Violations

 of use threatened or ,use attempted ,use the include acts such if or ,violation a from result injury

 10 than more not imprisoned or fined be may violator the ,fire or ,explosive ,weapon dangerous a

 acts such if or ,section this of violation in committed acts the from result death Should .both or ,years

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

 any for imprisoned or title this under fined be may violator the ,kill to attempt an or ,abuse sexual

 seeks 1968, in passed ,statute This .10death to sentenced be may or ,both or ,life for or years of term

 to applies it ,Therefore .activities protected federally with interfere forcibly who persons all punish to

 variety a penalizes law the of part first The .capacity private their in act who officers parole/probation

 as rights such of deprivations for punishment authorize to on goes act The .above noted as acts of

 serving; programs sponsored locally or state in participating; college or school public a attending

 such ,public the serving accommodations using or; travel interstate in participating; jury state a on

 who persons of interference penalizes act the ,Finally .motels and ,stations gas ,places eating as

 the in enumerated rights the enjoy or in participate to others for opportunity an give or encourage

 private a in and singly acting person a that in 242 and 241 sections from distinguished is It .statute

 .present at used seldom is law This .it violate can capacity

 ALL UNDER LIABLE HELD BE OFFICER AN MAY .III

.YES? LAWS ABOVE THE OF

 act single a on based officer parole/probation a to apply may above outlined laws of array entire The

 the to leads that officer an of act an ,example For .present are liability for elements required the if

 Under .laws federal and state under liability to officer the subject may offender an of death wrongful

 his by punished be can officer the ,Moreover .criminally ,civilly liable held be may officer the ,each

 .sanctions administrative through agency

 available is defense that because cases these in apply not does jeopardy double of defense The

 and Civil .11jurisdiction same the by offense same the for prosecutions successive are there if only

 criminal is case one if apply not does it ,hence; criminal are cases both that means” prosecution sivesucces “because act single a from result may government same the by imposed penalties criminal
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

1 CHAPTER

8

 the for court federal and court state in place take also may prosecutions Criminal .civil other the and

 double no is there ,therefore; jurisdictions different in place take prosecutions federal and State .fensede the for requirement” jurisdiction same “the of because jeopardy double no is There .act same

 employment from dismissed is employee an if protection jeopardy double no also is There .jeopardy

 same the for ,liable civilly held or ,prosecuted either then and agency her by disciplined otherwise or

 .proceeding criminal a not is ,action civil a like ,discipline agency because so is This .act

 case King Rodney infamous the in officers police defendant the involving events of series The

 .not does it how ,importantly ,and applies protection jeopardy double how of example an provides

 agency the by employment from dismissed then and suspended first were officers the ,case that In

 After .acquitted were but ,court state in acts criminal for tried then were They .)liability administrative(

 The .institution federal a in time served and convicted were two other the but ,court federal in quittedac were defendants four the of Two .court federal in acts criminal for again tried were they ,acquittal

 by tried were they because prevail not did but ,appeal on defense jeopardy double the raised officers

 .damages civil for liable held also were officers The .jurisdictions different two

LIABLE HELD IF RESULTS DIFFERENT .IV

 In .caused damages for plaintiff the to defendant the by money of payment in results liability Civil

 seek also may plaintiff the ,cases 1983 § In .money seeks plaintiff the ,therefore ,cases liability civil

 in imposed Sanctions .compensation monetary to addition in practice or policy agency in changes

 authorized sanctions other or ,restitution ,fine ,probation ,prison or jail in time include cases criminal

 ,transfer ,demotion ,dismissal include sanctions Administrative .judge the by imposed and law by

 .law state or policy agency by authorized are that sanctions other or ,warning ,reprimand

CIVIL IN DEFENDANTS POSSIBLE .V

CASES LIABILITY

 best are who those defendants as include usually plaintiffs (approach” pockets deep “the Using

 defendants as include generally plaintiffs ,)them against judgment monetary a satisfy to positioned

 parole/probation the include might This .case a with do to anything have possibly might who anybody

 offending alleged the of employer the is that agency governmental the and ,supervisors the ,officer

 supervisors whereas ,pockets shallow have officers parole/probation that is assumption The .officer

 is amounts what for responsible is who of question the Resolving .pockets deep have agencies and

 .(Indemnification on 4 Chapter See (law state by determined usually

 Defendant as Agency Government .A

 is This .agency state a is defendant the if attaches usually immunity ,agency the against lawsuits In

 from stemming doctrine a ,immunity sovereign enjoy) government federal the and (states because

 .liable held or sued be cannot hence” ,wrong no do can King the “that concept law common the

 jurisdictions many and ,decision judicial or law through waived be may ,however ,immunity Sovereign

 particular the whether to as arises question the ,state a in exist does immunity sovereign Where .nityimmu sovereign s’government federal the of most waived has ,example for ,Congress .it waived have

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

 .state to state from vary decisions and law of area complex a is This .)immunity

 under liability to subject are governments Local .different is governments local concerning rule The

 the In .12Services Social of Department .v Monell in decision s’Court Supreme States United the

 .defense immunity sovereign the of agencies local stripped Court the ,decision Monell 1978
Liabilities Legal Federal and State of Overview An

1 CHAPTER

9

 and sued be may subdivisions political other or ,municipalities ,districts judicial ,counties ,Therefore

 .do employees their what for liable held

 Defendants as Officers Individual .B

 Officers State 1.

 unless activities governmental their for liability from exempt generally are agencies state Although

 are who officers state individual to unavailable is ordinarily immunity ,waived is immunity sovereign

 that fact The .individuals as sued be may boards parole/probation state of members ,Therefore .sued

 has state the that mean not does ,liable held if officer the indemnifies or ,counsel provides state a

 state the and damages the pays officer the ,liable held if ,that means simply It .sued be to consented

 individual their in sued be therefore may ,local or state ,officers All .him reimburses or indemnifies

 1983. § under capacity

 Agencies Local of Officers 2.

 in sued be may subdivisions political other or ,municipalities ,districts judicial ,counties of Officers

 sue likely will plaintiffs ,however ,officers state of case the in As .capacities individual or official their

 .defendants as agencies and supervisors their include can they so capacities official their in officers

 CIVIL IN AWARDED DAMAGES OF KINDS .VI

CASES LIABILITY

 who those to particularly ,cases liability civil in awarded be may damages of kinds three ,general In

 :law tort state under file

 Damages Compensatory or Actual .A

 Consequential .plaintiff the by shown injuries actual all terms monetary to reduce damages These

 in included are and” damages special “termed are ,wages lost and bills medical as such ,damages

 .damages compensatory of category the

 Damages Nominal .B

 the in usually ,action of cause his proved plaintiff the that court the by acknowledgment an are These

 would damages nominal ,injury actual no suffered but wronged was plaintiff the When $1. of amount

 .appropriate be

 was ,officers police state by arrested was who plaintiff a ,example for .,Y.N .v Brooker ,case one In

 court the ,battery and assault alleging claim a In .tavern a of out pulled and neck the by grabbed

 force of use the from” injury no “suffered plaintiff the that finding ,damages nominal in $1 awarded

 the videotape to started someone when only pain of moans” phony embarrassingly “made and

 constitutional a where entered be must award damage nominal a that held have ,Courts .13events

.14resulted damages actual no if even ,found been has violation

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

 awarding for basis the lay also damages Nominal .award damage compensatory a without or with

 cases in automatic not are fees These .party prevailing the identify they that in fees attorney 1983

 account into take must courts that held has Court Supreme the; however ,damages nominal involving

 in and fees s’attorney award to whether deciding in granted relief other and award the of amount the

.15amounts what
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

1 CHAPTER

10

 Damages Exemplary or Punitive .C

 deter to as well as ,wrongdoer the of example an make or punish to designed are damages These

 Supreme .S.U the ,case one In .high quite be can awarded damages Punitive .transgressions future

 the of requirements process due violate not did award damage punitive million $10 a that held Court

 size relative or absolute the that noted Court Supreme the ,decision its making In .amendment th14

 ,bias reflects award an whether ,rather ,but excessiveness of test the not was award punitive a of

 .transgressors willful against only awarded are damages Punitive .16jury the by prejudice or ,passion

 local against awarded be may damages punitive no that ruled has Court Supreme the ,However

.17governments

SUMMARY

 laws various the discusses chapter This .administrative and criminal ,civil as classified be may itiesliabil Legal .law state and federal under liabilities legal to exposed be may officers parole/Probation

 liabilities These .work her with connection in exposed be may officer an which to consequences and

 and civil of number a to officer the expose may act serious one ,fact in; exclusive mutually not are

 other or ,dismissal ,demotion ,suspension ,transfer in result can that proceedings disciplinary trativeadminis to subject be may officer the ,addition In .law state and federal both under liabilities criminal

 .sanction of forms

 under liability preclude necessarily not does jeopardy double against protection constitutional The

 may) b (,criminal be all not may) a (cases the because simultaneously law of sources these of all

 Double .jurisdiction same the by prosecuted be not may) c (or ,act criminal same the to relate not

 by undertaken are offense same the for prosecutions criminal where only applies protection jeopardy

 .jurisdiction same the

 include may ,approach” pockets deep “the using plaintiff a ,officer parole/probation the to addition In

 well as supervisors include could This .case the with do to anything had who anybody defendants as

 agency federal or state a ,However .officer parole/probation the employing agency government the as

 sovereign If .decision judicial or law through waived unless immunity sovereign enjoy will normally

 .(immunity official is there which for (governmental was involved tionfunc particular the whether determine to important becomes then it ,state a in exist does immunity

 subdivisions political other or ,municipalities ,districts judicial ,counties as such ,governments Local

 .Services Social of Department .v Monell in siondeci s’Court Supreme .S.U the under employees their of actions the for liable held and sued be may

 These .awarded be may that damages of kinds three essentially are there ,cases liability civil In

 shown injuries actual for amount monetary a of form the in damages compensatory or actual include

 acknowledges court the Here .damages nominal is award damage of type second A .plaintiff the by

 ,case this In .sustained was injury actual no but ,action of cause her proved has plaintiff the that

 is cases civil in awarded damages of type third A .awarded be might $1 ,say ,of amount nominal a

 the of example an make or punish to awarded are damages These .damages exemplary or punitive

 .future the in others by transgressions deter to as well as wrongdoer
Liabilities Legal Federal and State of Overview An

1 CHAPTER

11

NOTES

.(2009) edition ninth ,Dictionary Law s’Black 1.

.(2003) 39.03 § ,Code .Pen .Tex 2.

.(2006) 1983 § ,Code.S.U 42 3.

 .(2006) 1985 § ,Code .S.U 42 4.

.(2006) 1981 § ,Code .S.U 42 5.

.(2010 .Ark .D.E (904 d.2Supp.F 693 ,Alexander of City .v Giron .,g.E 6.

.(2006) 242 § Code .S.U 18 7.

.(2006) 241 § Code .S.U 18 8.

.(2006) 245 § Code .S.U 18 9.

.Id 10.

.(2010 July ,Westlaw (275 § Law Criminal d2 .Jur .Am 21 11.

.(1978) 658 .S.U 436 ,Services Social of Department .v Monell 12.

.(1994 .D.A (640 d.2S.Y.N 614 ,York New .v Brooker 13.

.(1991 .Cir th9 (1390 d.2F 929 ,Laws .v Floyd 14.

.(1992) 103 .S.U 506 ,Hobby .v Farrar 15.

.(1993) 443 .S.U 509 .,Corp Resources Alliance .v .Corp Production TXO 16.

.(1981) 247 .S.U 453 .,Inc ,Concerts Fact .v Newport of City 17.

2 CHAPTER

 :LAW STATE UNDER LIABILITY CIVIL

CASES TORT STATE

 INTRODUCTION

 TORT STATE OF DEFINITION .I

 TORT STATE OF KINDS .II

 Tort Intentional .A

 Tort Physical 1. 

 Tort Nonphysical 2. 

 Tort Negligence .B

 Negligence of Definition 1. 

 Tort Negligence of Elements 2. 

 Negligence of Types 3. 

 CASES TORT STATE IN DEFENSES.III

 Officials for Immunity .A

Officials to Available Immunity of Categories 1. 

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

Immunity Governmental .B

 From Resulting Cases Injury in Defense Doctrine Duty Public The .C

Supervision Negligent 

 SUMMARY

 NOTES

13

Cases Tort State :Law State Under Liability Civil

2 CHAPTER

15

INTRODUCTION

 known is act the commits who person the while ,act tortious a called is itself act the ,terminology galle In .tort negligence and tort intentional :cases tort state of kinds major two discusses chapter This

 this ,hence; another to state one from law tort state in variation much so is There .tortfeasor a as

 .specifics for consulted be must law State .principles general to restricted is discussion

TORT STATE OF DEFINITION .I

:as Dictionary Law s’Black in defined is tort A

 the in usually ,obtained be may remedy a which for ,contract of breach than other ,wrong civil A

 particular a in stand who persons on imposes law the that duty a of breach a; damages of form

.1another one to relation

 ;individual an against tort a and state the against crime a be simultaneously can act same The

 a ,example For .act same the from arise may action tort civil a and prosecution criminal a both ,thus

 and driver another to injury in resulting accident an causes and intoxicated while drives who person

 civilly and intoxicated while driving of offense criminal the of guilty be may car her or his to damage

 may acts Tortious .car the to damage the and person other the to resulting injury the for both liable

 3. Chapter in discussed as 1983, §under rights civil of violation charging suits for basis the be also

 fixes and liability of determination makes that jury a before court state in tried usually are actions Tort

 The .law applicable the to as judge the from instructions under paid be to damages of amount the

 tort successful A .appeal on or judge trial the by either modification to subject is determination jury

 .party wronged the to damages monetary of payment in results generally action

TORT STATE OF KINDS .II

 by determined are and another to state one from vary liability tort to rise give which acts specific The

 and ,torts negligence ,torts intentional ,namely ,torts of types three are There .legislation or law case

 face to unlikely are officers parole and probation ,products dangerous of distribution and ,sale ,facturemanu the with associated damages involves torts of category latter the Because .torts liability strict

 torts intentional ,varieties two other the of claims encounter to likely are they ,Instead .claims such

 more and more ,late of ,but both to exposed are officers parole and Probation .torts negligence and

 officer the that is cases tort negligence in allegation The .tort negligence under filed been have cases

 of member a usually ,plaintiff the to injury in resulting ,done have to ought she or he what do to failed

 .public the

 Tort Intentional .A

 or general with acting someone by committed tort A “as tort intentional defines Dictionary Law s’Black

2“.intent specific

 :following the prove must plaintiff the ,case tort intentional an in prevail To 

.defendant the by act An■ 

 that certainty substantial with knew defendant the or purposeful and deliberate be must act The■ 

.act the from result could consequences

.act the by caused been have must result The■ 

 .act the from resulted Damages■ 
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

2 CHAPTER

16

 was act the ,defendant the by committed was act the because battery of tort intentional the under blelia held be may officer The .injury causing probationer juvenile a beats officer probation A :Example

 the from resulted harm or damages and ,act the by caused was injury the ,purposeful and deliberate

 .act

 .torts nonphysical and torts physical namely ,categories two into subdivided be may torts Intentional

 Tort Physical 1.

 .below presented is torts physical of list illustrative An

 .touching offensive or harmful Intentional .Battery .a

 .touching immediate of apprehension reasonable in person a placing Intentionally .Assault .b

 .distress emotional caused that officer an of Acts .distress emotional of Infliction .c

 .illegally person a detaining or Arresting .imprisonment false and arrest False .d

.another of act wrongful the by caused Death .death Wrongful .e

 to actor the of intent the on based are they ,torts intentional As .property s’person a to wrong a resentrep ,trespass as such ,others; person the to injury involve ,battery and assault as such ,torts Some

 ,misrepresentation ,slander ,libel ,distress mental of infliction ,privacy of invasion ,conversion ,mentimprison false or arrest false include torts intentional Other .harm in results which act the in engage

 the include torts physical these of some of Elements .prosecution malicious and ,death wrongful

 :following

.3touching offensive or harmful a of individual an by infliction intentional the is Battery■ 

 for also but ,harm physical actual do that contacts for only not liable is battery of case a in dantdefen The 

 ,face the in spitting ,pushing as such ,insulting or offensive merely are that ones trivial relatively

.4anger in someone of touching any or ,hat s’person a removing forcibly

 plaintiff the of consent The 

 .defense a is contact the to

 involve not might that individual an of part the on act intentional an is ,hand other the on ,Assault■ 

 Assault .touching immediate of apprehension reasonable in person a places that but ,contact any

 many in although (battery in involved invasion physical the than rather ,invasion mental a thus is

 alone words Threatening .manner hostile a in someone chasing or ,weapon a raising ,face s’onesome in fist a shaking include assault of Examples .)involved are battery and assault both cases

 among trend the that Note .assault an to contribute may they although ,sufficient not usually are

.5offense combined ,single a as battery and assault combine to is states the

.6plaintiff the to distress emotional cause that ,lessreck or intentional whether ,acts outrageous and extreme to refers distress emotional of Infliction■ 

 physical for liable be also may wrongdoer The 

.7distress emotional the from resulting harm

 .sufficient be may conduct or gestures or alone Words 

 they if examples be might public in shouted insults or officers parole/probation by tactics Bullying

 “.outrageous “and” extreme “deemed be can

 parole/probation which for actions tortious other two are imprisonment false and arrest False■ 

 the with interference unlawful the involve both of elements essential The .liable be may officers

.8another of interests liberty physical

 is person a when ,example for ,place takes arrest False 

 lacks officer arresting the when usually occurs This .warrant a of absence the in arrested illegally

 the committed arrested person the that and committed was crime a that believe to cause probable

 ,house halfway a as facilities such in place take can It .jail or prison a in be to have not does tiondeten The .detained illegally is person a ,arrest after ,when place takes imprisonment False .act

 used be not need force Physical .home private a even or ,hospital ,facility mental ,home juvenile

 a detain to force use actually not need officer parole or probation A .imprisonment false under
Cases Tort State :Law State Under Liability Civil

2 CHAPTER

17

 a makes officer probation a if is example An .arrest valid a after even place take may prisonmentim false ,arrest false follows usually imprisonment false Although .illegally parolee or probationer

 .judge the by so do to ordered been having after probationer the release to refuses but arrest valid

 the of executor the or relatives surviving as persons such by brought is lawsuit death wrongful A■ 

 won have not could deceased the if possible is recovery No .another of actions the by caused fullywrong was it when death the by harmed those to damages provides tort This .estate s’deceased

.9survived party that had right own her or his in suit a

Tort Nonphysical 2.

 .below presented is tort nonphysical constitute that acts of list illustrative An

 .reputation her or his in interest s’person a of invasion An .Defamation .a

 s’individual an with interference unreasonable covering concept umbrella An .privacy of Invasion .b

 .alone left be to right

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

 .decisions making in rely actually and justifiably

 for or cause reasonable without proceedings criminal of initiation The .prosecution Malicious .d

 .revenge as such ,reasons improper

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

 .tortious also is ,being-well

 involves It .reputation her or his in interest s’person a of invasion to refers defamation of tort The■ 

 or injure to tends) 5 (and ,unprivileged) 4 (and ,defamatory) 3 (,false) 2 (is that publication a) 1(

 individual an about material ,place take to defamation for order In .10damage special causes that

 person third one least at to ,)libel (form written in or) slander (orally either ,communicated be must

 ,refers it whom to person the of reputation the lower to tend must material The .11it understood who

 is truth s’statement the of Proof .community a of minority substantial a least at of estimation the in

.12be may it damaging how of regardless tort this under defense absolute an

 an with interfering of means distinct several embracing concept umbrella an is privacy of Invasion■ 

 a with interference unreasonable an is ,way own its in ,Each .13personality or solitude s’individual

 include concern of areas likely most The .14harm in results that alone left be to right s’person

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

 may invasion of act The .plaintiff the about facts private of disclosure public) 3 (and ,light false a in

 private s’person a of incident some of communication unauthorized the as such ,words mere be

 .photographs unauthorized taking or” ,peeping “,wiretapping as such ,act overt an be may it or ,life

 of class general the from distinct technically is It .15decisions making in rely actually do and fiablyjusti may individuals which on fact a of representation false a requires facts of Misrepresentation■ 

 the By .16interests commercial with interferences to applies and wrongs negligent and intentional

 do that but ,person a to harmful statements are falsehoods These .falsehoods injurious or mentdisparage is tort related A .this to susceptible are officers parole/probation ,work their of nature

 “,business in longer no is A “as such ,statements False .reputation her or his hurt necessarily not

 .examples are ,office post the with card address of change false a of filing the or

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

 liable be to defendant the for order In .revenge as such ,reason improper an for and cause ableprob without be must accusation The .arrest s’plaintiff the for warrant a in results that official other

 not found be must initiated were proceedings whom against plaintiff the ,prosecution malicious for

.17guilty
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

2 CHAPTER

18

 Tort Negligence .B

 the by assumption the on based is It .supervision parole/probation on while commit parolees/tionersproba that crimes by injured are who plaintiffs by frequency increasing with filed is tort Negligence

 parole/probation of purposes the of one that ,departments some in policy official made and ,public

 lawsuit a brings X .parolee a by raped is ,public the of member a ,X :Example .protection public is

 ,point The .not will it is likelihood the; story different entirely an is succeeds lawsuit the Whether .licpub the protect to duty their in negligence alleging department the and officer parole the against

 ,supervisor the ,officer the against brought be may supervision negligent for lawsuit a that is ,however

 in negligence of types all Not .parolees/probationers by committed crimes for department the and

 legal the on depends It :is answer The? lawsuits negligence to exposed be to as jobs their in ligentneg they are When :is officers parole/probation for question important An .liability to lead supervision

 .jurisdiction their in defenses available and negligence of definition

Negligence of Definition 1.

:negligence of definition accepted widely this offers court One

 to person a of failure the “,specifically more ,or” care ordinary of lack the “as defined is Negligence

 then circumstances the all by measured ,do not would person careful reasonably a that thingsome doing in person a of act the or ,do would person careful reasonably a that something do

18“.[omitted citation [existing

 The .19]omitted citations” [reasonableness of absence the “as simply more negligence view Some

 person prudent reasonably or careful reasonably a what on heavily relies negligence of definition

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

 would person careful reasonably a what do to advised best are officers parole/probation ,making

 are ,typical although ,definitions above the that ,however ,Note .circumstances the under done have

 state in out laid as vary may jurisdiction specific a in Negligence .jurisdictions particular to exclusive

.20law case state or statute

 Tort Negligence of Elements 2.

 tort negligence under liable held be to is defendant the if present be must following the ,general In

:21law

.plaintiff the to owed duty legal A■ 

.commission or omission by duty that of breach A■ 

.breach that of result a as injury an suffered have must plaintiff The■ 

 .injury the of cause proximate the been have must act s’defendant The■ 

 Negligence of Types 3.

 of state the on depending ,negligence of levels different among distinctions draw jurisdictions Many

 involves negligence simple ,above negligence of definition the in noted As .wrongdoer the of mind

 .circumstances like in exercise would person careful reasonably a that care the exercise to failure a

 attitude indifferent and passive a indicates that circumstances under act to failure a involves gencenegli Gross; “wrongdoer the of part the on culpability of level higher a requires negligence Gross

 and Ordinary 22”.care of absence an implies it ,nature in Negative .others of welfare the toward

 Willful “that in conduct reckless or ,wanton ,willful from distinguished be both can negligence gross

 with either ,act to failure intentional an or act intentional an requires ,hand other the on ,misconduct

 the for disregard active and positive a with or ,result probable a is injury serious that knowledge

23“.consequences
Cases Tort State :Law State Under Liability Civil

2 CHAPTER

19

CASES TORT STATE IN DEFENSES .III

 ,others of defense ,defense-self ,consent including ,cases tort state in available are defenses Many

 ,example For .defense particular own its has case tort of type every Nearly .property of defense and

 ;defamation of tort the against defense the from differ battery and assault of torts the for defenses the

 These .tort negligence the for defenses the from generally differ torts intentional for defenses the

 have to alleged are who persons private and jurisdiction to jurisdiction from somewhat vary defenses

 out find to jurisdiction own their of laws the consult to encouraged are conduct tortious in engaged

.elements their and defenses applicable

 or officials government to applicable are that those are here discussed defenses of types The

 government to applies (defense immunity official the include These .persons private to not ,entities

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

 supervision alleged of result a as cases injury in officials public to applies (defense doctrine duty

 .(negligence

 Officials for Immunity .A

 in sued being are they when liable held and sued being from immunity enjoy officials Government

 this for justification the articulated has Court Supreme States United The .capacities individual their

:thusly immunity

 those of course the in done acts of respect in suits damage of fear the by unembarrassed tiesdu their exercise to free be should government of officials that important thought been has It

 to devoted be otherwise would which energies and time consume would which suits-duties

 and ,vigorous ,fearless the inhibit appreciably might which of threat the and service governmental

.24government of policies of administration effective

 Officials to Available Immunity of Categories 1.

 and ,judicial-quasi ,absolute :categories three into divided be may officials to available immunity The

 .below discussed briefly is Each .qualified

 government if served best is interest public the that idea the on premised is immunity Absolute .a

 court into haled being of distraction the without duties official their discharge to free are officials

 even from official the protecting by” outset the at suit a defeats “privilege This .again time and time

 are who judges and ,legislators ,prosecutors to applies privilege The .25trial to subjected being

 the summarized Court Supreme The .26jurisdictions own their within duties judicial performing

 immunity absolute “,follows as point this on case classic the in immunity of kind this of elements

 their of scope the within is...conduct the when only available be should actions tort law-state from

 included is criterion discretionary The 27”.nature in discretionary is conduct the and duties official

 of threat the ,judgment independent of product the not is conduct s’official an hen]w “[,because

 ,below discussed ,immunity qualified Unlike .28conduct that inhibit detrimentally cannot liability

 immunity absolute the of herself avail to official an for order in required not is faith good

.29privilege

 have They .do they everything in immunity absolute enjoy not do judges that noted be must It

 issuing as such ,responsibilities adjudicatory or judicial performing when only immunity absolute

 when immunity absolute have not do They .probation revoking or probation of conditions setting

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

 .officers probation firing or hiring when or board

 whereas ,functions policymaking official their undertaking are who government of branches lativelegis and judicial the in officials to applied generally is immunity Absolute .immunity judicial-Quasi .b
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

2 CHAPTER

20

 ,however ,officials Some .branch executive the in those to applies) below see (immunity qualified

 board parole ,personnel court include officials Such .functions executive and judicial both have

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

 to extended is immunity judicial-quasi Absolute” “.immunity judicial-quasi “as jurisdictions some

 of type this Under 30”.disputes resolving in discretion of exercise the involve that duties ,is that ,esjudg of those to comparable functionally are that duties official perform they if officers nonjudicial

 are functions court or making decision discretionary involve that functions type-judicial ,immunity

 .not are) job the of duties ministerial as such (functions other some whereas ,liability from immune

.31holds officer the position the on than rather performed function the on is emphasis The

 and ,legislators ,prosecutors to attaches immunity absolute ,above noted As .32immunity Qualified .c

 not were that law common the of creatures were immunity judicial-quasi and Absolute .)ploymentem their of scope the within .,e.i (acts official) discretionary .,e.i (making-policy their for judges

 has law common The “1967, in observed Court Supreme the As .official public every to available

 case this in officers the and ,immunity unqualified and absolute an officers police granted never

 they if liable be not should they that rather is claim Their .one to entitled are they that claim not do

 .immunity qualified in qualifier the become has requirement faith good This 33”.faith good in acted

 the for states many in present be must that requirements the lists ,example for ,court state One

 are they as long as ,faith good in ,duties discretionary “their of performance the from arising suitslaw from immunity official to entitled are employees government that holding ,succeed to defense

 means this ,officers parole and probation to Applied 34”.authority their of scope the within acting

 was she) 1 (:that prove to have will officer the ,claim immunity official an on prevail to order in ,that

 ;authority her of scope the within acted she) 2; (act ,mandatory a not ,discretionary a performing

 these do What .)it requires defense immunity state the if (faith good in acted she) 3 (,perhaps ,and

 ?mean terms

 .judgment and ,decision ,deliberation personal involves act the that means Discretionary■ 

 no has officer the which to duty of performance or orders to obedience require that Actions

 officers parole and Probation .35ministerial ,instead ,are they; discretionary not are choice

 for?) probation revoke to motions .,g.e (discretionary are actions their of which consider should

 those supervising .,g.e (ministerial are actions which and ,apply might immunity official which

 .(assigned is officer the whom to parolees or probationers

 employee or official public] A “[:follows as defined been has criterion” authority of scope “The■ 

 generally duties the discharging is she or he if authority her or his of scope the within acting is

 a ,contrast By .authority his of scope the within acting is contact home a making officer bationpro A :Example 36”.negligently or wrongly performed are they if even her or him to assigned

 protect to order in home s’probationer a from infant an remove to decides who officer probation

 .authority his of scope the outside acting clearly is infant the

 were acts his that believed have could ,circumstances similar or same the under ,officer dentpru reasonably a if liability from immunity official to entitled is and faith good in acts officer An■ “

 police of context the in recently more somewhat described been has faith Good 37”.justified

 pursuit the that believed have might officer prudent reasonably a :where applying as pursuits

 unreasonable been have would it that prove not need officer The .continued been have should

 .pursuit the continued have would officers prudent reasonably all that or pursuit the stop to

 this on disagree could competence reasonable of officers if recognized be should Immunity

38“.issue

 .S.U the As .substantial quite is privilege the by afforded protection the that noting worth is It

 defense immunity qualified the As “,Briggs .v Malley of case the in acknowledged Court Supreme

 knowingly who those or incompetent plainly the but all to protection ample provides it ,evolved has

39“.law the violate
Cases Tort State :Law State Under Liability Civil

2 CHAPTER

21

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

 the and work they which for agencies the on dependent often is officers parole/probation for Immunity

 who officers Probation .immunity qualified have they general in but ,performed functions the of nature

 Fifth the ,example For .acts some for immunity judicial with vested be may they but ,judges of munityim absolute same the enjoy not do supervision court under work and court the of employees are

 when immunity judicial to entitled was officer probation federal a that held Appeals of Court Circuit

 for liability to subject not was and case criminal a in report presentence a submitting and preparing

 conclusion same the reached have 42since and 41before both ,cases Other .40damages monetary

 .officers probation state to relative

 ,executive considered are ,however ,officers probation supervised-court such of actions the of Many

 immunity absolute likely less the ,process judicial the from is function a distant more he]t “[held pealsAp of Court Circuit Tenth the ,immunity qualified to only entitled those from attaches immunity soluteab which for functions those Distinguishing .immunity qualified under come to likely are hence and

 immunity qualified enjoy who ,protection immunity absolute without officers Probation 43”.attach will

 and ,employment their of scope the within ,discretionary is act the unless liable held be may ,instead

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

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

 .functions ordered-court certain performing when have officers probation say courts some that

 must who branch executive the of officials higher that ruled have appeals of courts federal Most

 This .immunity absolute deserves that function judicial a performing are decisions judgelike make

 for applications considering as functions such performing when boards parole to refers particularly

.44hearing revocation parole a conducting or ,rescinded be date parole a that recommending ,parole

 and members board parole and probation that stated has ,however ,court appellate federal One

 faith good ,qualified only but duties adjudicatory in engaged when immunity absolute enjoy officers

 due procedural provide to failure the categorized court same The .acts administrative for immunity

.45attached liability which for ,nature in ministerial as hearing revocation a in process

 Immunity Governmental .B

 semireligious ,monarchical the on based originally was suit from immunity sovereign of doctrine The

 social of rule a as explained often more is it ,times modern In” .wrong no do can King the “that tenet

 The .instrumentalities and ,property ,funds state over control its preserves and functions mentalgovern its of performance the with interference burdensome from state the protects which ,policy

 be could authority supreme the if endangered safety public the and hindered be might service public

46[omitted footnotes [.government the of administration proper the for required means the of tiondisposi and use the in controlled consequently and ,citizen every of instance the at suit to subjected

 in Legislatures .immunity sovereign its retains fully state any nor government federal the Neither

 and ,wrongs governmental of victims compensate to pressure under been have jurisdiction every

 governmental of areas some least at in immunity waiving legislation of form some adopted have all

:scholar one by noted As .activity

 are outset the at acceptable immunity governmental the made that necessities fiscal urgent The

 ,omission and negligence of claims upon suit to consent and for liability accept to them for siblefea financially it found have states of number growing a and States United The .present longer no

 well as insurance liability public of availability the; all at liability no bore traditionally they which for

 .47tolerable quite liability new wholly this of assumption the makes insurance-self as

 the through caused injuries all for immunity relinquish totally to as far so gone has ,however ,state No

 .process governmental the of misadministration
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

2 CHAPTER

22

 and states the protect to operates ,decree judicial or legislation by waiver to subject ,immunity State

 .liability individual and liability agency between ,however ,made be must distinction A .agencies their

 individual to extend not does It .agencies state to extends only immunity governmental or Sovereign

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

 sued be still may officials state ,waived been not has immunity sovereign where states in ,Therefore

 be cannot state a ,example For .immunity governmental enjoy not do they because liable held and

 Parole State the of members and chairman the but ,)waived is immunity sovereign unless (sued

 .state to state from varies ,liable held if ,cationindemnifi and representation legal provide will state the Whether .liable held and sued be can Board

 were they because sued be not could villages and ,counties ,governments municipal 1978, to Prior

 in changed that All .immunity sovereign enjoyed hence and power state of extensions considered

 that 48Services Social of Department .v Monell in held Court Supreme States United the when 1978

 unconstitutional allegedly the if action 1983 § a in ,liable held be may government of units local

 .custom or policy a of part was action

 from far and ,confusing ,complex is defense immunity the ,discussion above the from evident is As

 state to state from exist Variations .officers parole and probation of case the in particularly ,settled

 to merely intended is discussion foregoing The .governments federal and state the between and

 summarizes 1–2 Table ,Similarly .framework legal the of description a and guide general a provide

 on statement definitive a as serve to intended not is It .held have jurisdictions most in courts what

 court and law the for advisors legal their consult should readers Interested .immunity of issue the

.states their in decisions

 Lawsuits Tort State in Immunity Official of Types to Guide General 1.–2 Table

§Qualified† judicial-Quasi* Absolute

Yes Judges

Yes Legislators

Yes Prosecutors

 judgelike a performing if ,Yes Members Board Parole

function

functions other performing if ,Yes

Yes Supervisors

 report presentence a preparing if ,Yes Officers Probation

judge of order under

functions other performing if ,Yes

Yes Officers Parole

Yes Guards Prison

Yes Officers Police

 law by waived unless ,Yes Agencies State

 decision court or

immunity No immunity No immunity No Agencies Local

 .liability No .claim s’plaintiff the of merits the into going without court the by dismissed is ,brought if ,suit liability civil a that means immunity Absolute* 

 performing are they if liable and ,judge the of orders under report presentence a preparing when as such ,functions type-judicial performing are they if immune are officers that means immunity judicial-Quasi† 

 .functions other

.faith good in done was it if ministerial is act the if even liable be not may officer an ,Also .ministerial is it if not but ,discretionary is it if liability from immune is act s’officer the that means immunity Qualified§ 
Cases Tort State :Law State Under Liability Civil

2 CHAPTER

23

 From Resulting Cases Injury in Defense Doctrine Duty Public The .C

 Supervision Negligent

 to failing for officers parole and probation of part the on liability no is there ,matter general a As

 “,doctrine duty public “the from stems liability from protection This .public the of member a protect

.49individuals specific to not but public general the to owed are functions government that holds which

 they because departments and officers parole and probation against lawsuits file public the of bersmem Injured .protection public is parole and probation of goals the of One .inflicted injury the for ableli not are public the of member a to injury an prevent to fail who officers parole/probation ,Therefore

 revoke to failure or supervision inadequate to parolees or probationers by caused injury the relate

 the had and supervised properly been offender the had ,that assumes public The .parole or probation

 .prevented been have could injury the ,conditions of violation upon revoked been parole or probation

 for not it were ,that is reality The .law in basis no has generally it ,be may thinking this as Logical

 a be to want ever would nobody ,doctrine duty public the by given liability civil against protection the

 as protection public promote that occupations risk-high are These .officer parole or ,probation ,police

 do supervisees their or public the what over control any have hardly they yet ,mission their of part a

 .liability civil against protected are they ,therefore; public the vis-à-vis

 Exists Relationship Special a If Imposed Be May Liability :Exception The

 ,namely ,doctrine duty public the to exception undefined largely and ,multifaceted ,major one is There

 the despite attach may liability that holds essentially exception The .exception relationship special the

 who individual the and government the between exists relationship special a if doctrine duty public

 a if that means parole and probation of context the in exception the of application The .50harm suffers

 officer parole or probation a then ,public general the to than rather person particular a to owed is duty

 many has relationship Special .damages for liable held be can duty that breaches that agency or

.regulations agency or ,decisions court ,law state on depending meanings

 enforcement law involved generally have doctrine duty public the to exceptions involving cases The

 opposed as (danger the creates government the) b (,statute a from arises duty a such) a (:stancescircum following the in relationships special of basis the on liability established have and officers

 the of protection special undertakes voluntarily government the) c (,)it prevent to failing to merely

 the persuade to promise or statement a made officers its or government the) d (,victim individual

 existing an exacerbated officers government the) e (or ,protection for government the on rely to victim

.51victim the to harm of risk

.52custody into her or him taking by liberty of individual an deprive police the When■ 

 general the protect to duty police beyond goes that obligation an assume police the When■ 

.53public

.54law by mandated is protection When■ 

.55court the by ordered is protection When■ 

 police the of duty the ,circumstance each in ,that is common in have situations above the What

 ;persons or person particular a protecting to general in public the protecting of that from shifted has

 .established been have to deemed is relationship special a hence

 parole or probation to apply might exception relationship special the when instances are There

 in are they as ,authority enforcement law with vested are they when likely particularly is This .officers

 .jurisdictions some
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

2 CHAPTER

24

 8, Chapter in fully more discussed are exception relationship special the and doctrine duty public The

 .Supervision

 SUMMARY

 state of kinds two are There .law tort state under liable held be may officers parole and Probation

 torts intentional ,namely ,officers parole and probation to relevance particular of be should that torts

 a by injured is public the of member a when happens This .public the by filed cases of number ingincreas the of because officers parole/probation for importance greater assumed has tort ligenceNeg .tort nonphysical and tort physical :subcategories two has tort Intentional .torts negligence and

 officer the had prevented been have could injury the believes plaintiff the and parolee or probationer

 whereas ,commission of tort a is tort Intentional .parolee or probationer the supervised properly

 ought that something do to failed officer the meaning ,omission of tort a generally is tort negligence

 .done been have to

 to available immunities the :chapter this in discussed are defense one and immunity of types Two

 .qualified and ,judicial-quasi ,absolute :categories three into divided be may officials to available nityimmu The .defense doctrine duty public the and; government the to available immunity the; officials

 ,responsibilities judicial their performing while immunity absolute enjoy prosecutors and Judges

 that means immunity Governmental .immunity qualified have officers parole and probation whereas

 ;immunity sovereign enjoy not do ,however ,agencies Local .law case or legislation by waived is tyimmuni sovereign such unless ,sovereign as status its of because sued be cannot government the

 functions government that holds doctrine duty public The .liable held and sued be can they ,hence

 officers parole and probation ,Therefore .individuals specific to not but public general the to owed are

 special the under falls it unless liable not are public the of member a to injury an prevent to fail who

 .basis case-by-case a on pliedap be to tends and concept defined-ill an is ,however ,relationship Special .exception relationship

 NOTES

.(2009) edition ninth ,Dictionary Law s’Black 1.

.(2009) edition ninth ,Dictionary Law s’Black 2.

13. § Torts ,Second Restatement 3.

19. § Torts ,Second Restatement 4.

.(1)21 § Torts ,Second Restatement 5.

 Emotional and Physical for Liability :Torts ,Third Restatement; 46 § Torts ,Second Restatement 6.

45. § Harm

 .(2004) 483 d.2E.S 602 ,Stanley .v .Co Casualty and Fire Virginia West 7.

 ,Knight .v Smith); 2005 .Dist d2 .App .Ct .Dist .Fla (955 d2 .So 898 ,Austrino .v Petersburg .St of City 8.

 .App .Mich 259 ,Berkley of City .v .Inc ,Novelties Peterson); 2005 .Cir d2 .App .Ct .La (831 d2 .So 907

 City .v Williams); 2001 .D.E .App .Ct .Mo (41 d.3W.S 46 ,Bonser .v Jacobs); 2003 (351 d.2W.N 672 1,

.(2004) 422 d.2E.S 599 587, .App .C.N 165 .,Dept Police Jacksonville of

.(2010 July ,Westlaw (19 § Death d.2Jur.Am A22 9.

.(2007 .Cal (1185 d.3P 151 ,Loftus .v Taus 10.

.(2010 July ,Westlaw (1 § Slander and Libel d.2Jur.Am 50 11.
Cases Tort State :Law State Under Liability Civil

2 CHAPTER

25

.(2010 July ,Westlaw (472 § Slander and Libel d.2Jur.Am 50 12.

.(2010 July ,Westlaw (29 § Privacy d.2Jur.Am A62 13.

.(1)A652 § Torts ,Second Restatement 14.

 56. § Deceit and Fraud d.2Jur.Am 37 15.

 326 d.3P 4 ,Services Youth and Family of .Div ,Services Human and Health of .Dept ,State .v .G.P 16.

 .(2000 Alaska(

.(2010 July ,Westlaw (3 § Process of Abuse d.2Jur.Am 1 17.

.(2008 .Kan (941 d.3P 188 ,Bowman .v Deal 18.

.(.,2006Dist 3 .App .Cal (533 522, d.3Rptr.Cal 43 ,Joaquin San of County .v Metcalf 19.

.(2010 July ,Westlaw (9 § Negligence d.2Jur.Am A57 20.

.(2010 July ,Westlaw (5 § Negligence d.2Jur.Am A57 21.

.(2010 July ,Westlaw (231 § Negligence d.2Jur.Am A57 22.

 .(2010 July ,Westlaw (231 § Negligence d.2Jur.Am A57 23.

.(1959) 571 564, .S.U 360 ,Matteo .v Barr 24.

.(2010 July ,Westlaw (307 § Employees and Officers Public d.2Jur.Am C63 25.

.(2010 July ,Westlaw (307 § Employees and Officers Public d.2Jur.Am C63 26.

.(1988) 297-298 292, .S.U 484 ,Erwin .v Westfall 27.

.(1988) 296-297 292, .S.U 484 ,Erwin .v Westfall 28.

 .(2008 Alaska (1065 d.3P 189 ,Stafford .v Smith); 2008 .C.D (929 d.2A 952 .,C.D .v Minch 29.

.(2010 July ,Westlaw (309 § Employees and Officers Public d2 .Jur .Am C63 30.

.(2010 July ,Westlaw (307 § Employees and Officers Public d2 .Jur .Am C63 31.

 is it ,jurisdictions multiple across and time over evolved has immunity of form this Because 32.

 is immunity official of law Texas “,example For” .immunity qualified “name the by known always now

 .Cir th5 (1160 1154, d.3F 130 ,Towe .v Wren” (.law immunity qualified federal as same the substantially

Murray); 2004 Circuit th5 (653 d.3F 391 University Southern Texas .v Haggerty .,g.e ,also see); 1997

.(2005 Circuit th5 (275 d.3F 405 ,Earle .v

 .(1967) 555 547, .S.U 386 ,Ray .v Pierson 33.

,Bajjani .v Murphy .,g.e ,also see); 1994 Texas (650 d.2W.S 883 ,Chambers .v Lancaster of City 34.

.(1984 .Mich (641 d.2W.N 363 .,Co Power Consumers .v Ross); 2007 .Ga (54 d.2E.S 647

Barnard .,g.e ,also see); 1997 ,Christi Corpus .App .Cr .Tex (709 d.2W.S 944 ,Ruiz .v Pharr of City 35.

 for calls act discretionary A “.)2010 .App.Ga __ (d.2E.S __ 3749087, Westlaw 2010 ,County Turner .v

“.directed specifically not way a in them on acting and ,conclusions reasoned ingreach ,facts the examining entails turn in which ,judgment and deliberation personal of exercise the

.(2004 .Tex (417 d.3W.S 144 .,Inc ,Builders Champion .v Ballantyne 36.

 .(1995 Houston.-App .Ct .Tex (571854 Westlaw 1995 ,Novark .v Moore 37.

 .v Loftin ,also see); 1997 Christi Corpus.-App .Ct .Tex (715 709, d.2W.S 944 ,Ruiz .v Pharr of City 38.

.(2005 Tyler.-App .Ct .Tex (533 d.3W.S 187 ,Morales
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

2 CHAPTER

26

 .(1986) 341 335, .S.U 475 ,Briggs .v Malley 39.

.(1979 .Cir th5 (728 d.2F 599 ,Nielsen .v Spaulding 40.

.(1970) 908 .S.U 403 ,denied .cert ,)1970 .Cir th9 (318 d.2F 433 ,Callion .v Burkes 41.

.(2009 .Ala .D.M (734146 Westlaw 2009 ,Quattlebaun .v Parris 42.

.(.1990Cir th10 (687 673, d.2F 920 ,Tunnell .v Snell 43.

.(1972 .Cir th9 (810 d.2F 468 ,Procunier .v Keeton 44.

 Westlaw 2009 ,Rendel .v Moriarty ,also see); 1977 .Cir d3 (231 d.2F 556 ,Burke .v Thompson 45.

 .(2009 PA .D.M (1458201

.(2010 July ,Westlaw (97 § Dependencies and ,Territories ,States d2 .Jur .Am 72 46.

 1, .Rev .L .Colo .U 44 ,Wrongs Governmental Positive for Accountability and Immunity ,Engdahl .D 47.

.(1972) 60 at

.(1978) 658 .S.U 436 ,Services Social of Department .v Monell 48.

.(2010 July ,Westlaw (88 § Liability Tort State and ,School ,County ,Municipal d2 .Jur .Am 57 49.

.(2010 July ,Westlaw (84 § Liability Tort State and ,School ,County ,Municipal d2 .Jur .Am 57 50.

.(2010 July ,Westlaw (175 § Liability Tort State and ,School ,County ,Municipal d2 .Jur .Am 57 51.

.(2010) Duties 492, § Corporations Municipal CJS 52.

.(1958 .Y.N (534 d.2E.N 154 ,York New of City .v Schuster See 53.

.(2005) 38 § Harm Emotional and Physical for Liability :Torts ,Third Restatement 54.

.(2010) lencevio Domestic--protection police provide to Failure 2:37, § Litigation and Law :Misconduct Police 55.
3 CHAPTER

 UNDER LIABILITY CIVIL

CASES 1983 § :LAW FEDERAL

 INTRODUCTION

 CASES 1983 § .I

 Law The .A

 Law the of History .B

 Popular Are Lawsuits 1983 § Why .C

 Officer Public a Against Cases Criminal to Roadblocks .D

 SUCCEED TO LAWSUIT 1983 § A FOR REQUIREMENTS TWO .II

 Law of Color Under Acted Defendant The .A

 by Given Right a of or Right Constitutional a of Be Must Violation The .B

 Law) State Not but (Federal 

 CONSIDERATIONS LEGAL OTHER.III

 Level Constitutional Reach Must Violation The .A

 but ,Government Local a or Person Natural a Be Must Defendant The .B

 State a Not 

 LAWSUITS 1983 § IN DEFENSES .IV

Fitzgerald .v Harlow in Defined as Defense Faith Good The .A

Agencies to Available Not Defense Faith Good 1. 

 Cases Amendment Fourth in Only but ,Defense Cause Probable The .B

 COMPARED CASES TORT STATE AND 1983 § .V

 SUMMARY

 NOTES

27

Cases 1983 § :Law Federal Under Liability Civil

3 CHAPTER

29

INTRODUCTION

 array the in provision used frequently most the perhaps is 1983 § ,Code States United the of 42 Title

 and probation includes that actors of category the ,officials public against statutes liability legal of

.1officers parole

 parole and probation by understood properly be law this that important therefore is It 

 These .cases rights civil as known also sometimes ,cases 1983 § discusses chapter This .officers

/and damages seeks ,cases tort state in as ,plaintiff the and courts federal in filed usually are cases

 .practice or policy agency in changes or

CASES 1983 § .I

 Law The .A

 :follows as reads ,rights of deprivation for action Civil—1983 § ,Code States United 42, Title

 any of ,usage or ,custom ,regulation ,ordinance ,statute any of color under ,who person Every

 of citizen any ,subjected be to causes or ,subjects ,Columbia of District the or Territory or State

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

 injured party the to liable be shall ,laws and Constitution the by secured immunities or ,privileges

 action any in that except ,redress for proceeding proper other or ,equity in suit ,law at action in

 ,capacity judicial s’officer such in taken omission or act an for officer judicial a against brought

 relief declaratory or violated was decree declaratory a unless granted be not shall relief injunctive

 to exclusively applicable Congress of Act any ,section this of purposes the For .unavailable was

.2Columbia of District the of statute a be to considered be shall Columbia of District the

 Law the of History .B

18713 of Act Rights Civil The Congress when Era Reconstruction War Civil-post the in enacted was 

.4Constitution the to Amendment th14 the by tectedpro liberty of intrusive officials state by violations rights civil address to remedy civil for need a saw

 federal a enact to time that at feasible not was It 

 those to protection provide to was aim immediate Its .violations such address to statute criminal

 only possible made and law state of virtue by possessed power of misuse the through wronged

 ,however ,interpreted originally As .law state of authority the with clothed was wrongdoer the because

 not could it that such was conduct s’officer the where violations rights civil to apply not did law the

 when 1961 in changed picture That .used seldom was it ,hence; agency the by authorized been have

5Pape .v Monroe

 .decided was 

 of violations all to applied 1983 § that ruled Court Supreme States United the ,Pape .v Monroe In

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

 cases of avalanche virtual a to impetus gave and rights of protection of scope the expanded greatly

 officer the whether ,violations rights constitutional alleged of variety a on based courts federal in filed

 .duty of scope the outside or within acting was

 Popular Are Lawsuits 1983 § Why .C

 always almost they ,First .reasons myriad for plaintiffs for vehicle popular a are suits rights Civil

 be can This .pays somebody ,wins plaintiff the if that meaning ,defendant the from damage seek

 the or resources personal the have not may who officer parole or probation a to intimidating very

 wherein lawsuit action class a as filed be can suits rights civil ,Second .liabilities cover to insurance

 .collectively heard is case their and class a as certified are violations similar alleging plaintiffs several

 rights civil a if ,Third .support moral them affords and strength of position a in plaintiffs the puts This
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

3 CHAPTER

30

 in succeeds suit rights civil a if ,example For .specific than rather generic is effect its ,succeeds suit

 instead revocation before hearing one only parolees giving of practice the unconstitutional declaring

,6Brewer .v Morrissey in indicated as hearing final and preliminary a of

 similarly all benefits ruling the 

 federal in directly filed usually are cases rights civil ,Fourth .plaintiff the just not ,parolees situated

 often are”) discovery “called (defendant the from materials obtaining for procedures where courts

 records and documents state important to access facilitates This .courts state in than liberal more

 a ,law federal under 1976, since that is ,reason important most perhaps and ,fifth A .trial for needed

 to inclined more become have lawyers ,Consequently .fees s’attorney recover may plaintiff prevailing

 .suit the in merit any see they if cases 1983 § file

Officer Public a Against Cases Criminal to Roadblocks .D

 public the against sanctions criminal of availability the despite extensively suits 1983 § use Plaintiffs

 case civil a is 1983 § under filed case A .exclusive mutually not are two the that is reason One .officer

 case criminal a if party aggrieved an to benefit The .rights of vindication seeks plaintiff the which in

 .paid are damages where party that to benefit the than direct less is injury of because brought is

 public against cases file to attorneys district some of unwillingness the are these Among .officers rolepa or probation erring against sanctions criminal of use the to barriers definite are there ,Moreover

 roadblock Another .need sometimes may they help whose and regularly work they whom with officers

 that clearly shown is it unless offenses criminal with officers public charge to inclined be not may riesju Grand .indictment for jury grand a to referred be must states most in cases criminal serious that is

 may evidence the ,rights of violation alleged involving cases criminal many In .egregious was act the

 may jury grand The .officer public a of word the against complainant the of word the to down come

 ,Finally .parolee or probationer the than officer parole or probation the with side to inclined more be

7standard doubt reasonable a beyond guilt the than lower much ,)certainty percent 50 than more ,lyrough (evidence of preponderance mere is cases civil in succeed to needed certainty of degree the

 .defendants criminal convict to needed

 LAWSUIT 1983 § A FOR REQUIREMENTS TWO .II

SUCCEED TO

 :court in succeed to lawsuit 1983 § a for requirements two are There

“.law of color “under acted defendant The■ 

 .law) state by not but (federal by given right a or right constitutional a violated defendant The■ 

 Law of Color Under Acted Defendant The .A

 and law state of virtue by possessed “power misused have must official the means requirement This

8“.law state of authority the with clothed is wrongdoer the because only possible made

 is it Although 

 agent an as himself identifies but ,arrest s’citizen a makes officer probation a where as (egorizationcat easy defy that areas gray are there ,)order court to pursuant investigation presentence a ductscon officer probation a where as” (law of color “term the within wholly are that acts identify to easy

 routinely officer parole or probation a what of much ,rule general a As .)system justice criminal the of

 considered be to likely is hours usual the during and duties his or her of performance the in does

 the if law of color under acts officer an ,general In .law state of color the outside fall to likely is hoursoff her or his during citizen private a as does she or he what ,Conversely .law state of color under

 officer probation A :Example .did she or he what do to authority her or his of advantage takes officer

 .law of color under acting is officer The .visit home a during probationer a assaults sexually
Cases 1983 § :Law Federal Under Liability Civil

3 CHAPTER

31

 fact in was act the that mean not does” law of color “term the ,example preceding the by suggested As

.9authorized fact in not was it if even lawful be to appeared act the if sufficient is It .law by authorized

 still may she or he ,authority lawful her or his exceeded officer parole or probation the if even ,Hence

 the or s’plaintiff the either is it sometimes ,Indeed .law of color under acted have to considered be

.10control that law state of color under were actions the whether about beliefs subjective s’defendant

 language plain The .no is ,part most the for ,answer The? 1983 § under sued be officers federal Can

state of color under acting persons to applies it that clear it make 1983 § surrounding law case and

 There .11Narcotics of Bureau .Fed of Agents Named Unknown Six .v Bivens in decision Court premeSu States United the to pursuant authority parallel under liable held be can officials Federal .law

 of victims of favor in exists ,Constitution the from derived ,action of cause a that held Court the

 constitutional against protection same the essentially provides Bivens .misconduct’ officials federal

 real only the; officers local and state against as provides 1983 § that officials federal by violations

 federal a ,Moreover .12statutory is latter the whereas ,right law common a is former the that is difference

.13law of color under act who officers state assists she or he if 1983 § under directly sued be can officer

 acting be to held be cannot contractors Private .Yes? 1983 § under sued be contractors private Can

 issue at conduct the either if law state of color under acting be to held be may contractors such ,everHow .14governments local or state with contracting are they because simply law state of color under

 the within typically is contractor the by provided function the or 15government the of control under is

.16government the of purview exclusive

 Given Right a of or Right Constitutional a of Be Must Violation The .B

 Law) State Not but (Federal by

 States United the by guaranteed is that one be must violated right the ,requirement this Under

 are law state under exclusively provided Rights .law federal by plaintiff the given is or Constitution

 not is hearing release parole a during lawyer a to right the ,example For 1983. § under protected not

 1983 § a in adjudicated be cannot thereof violation a so ,law federal by or Constitution the by given

 administrative or remedies law state through vindicated be to have would right such ,Instead .suit

 .regulations

 that officers parole or probation of acts the to not relate requirement this of aspects worrisome The

 illegal an conducts officer probation a when as (right constitutional known a of violative blatantly are

 first the in exists right constitutional specific a whether ascertaining in lies problem The .)search

 recently only have courts the where parole and probation in troublesome particularly is This .place

 .entitled constitutionally are parolees and probationers which to rights specific the define to started

 federal although ,far thus cases of handful a only decided has Court Supreme States United The

 the with familiar be to officers parole and probation for ,therefore ,important is It .other each with tentinconsis be may decisions these of Some .many decided have appeals of courts and courts district

 followed be must that law the is this as jurisdictions own their in courts the by decided as law current

 .states other in contrary the to decisions of regardless

 means one of Absence .present are elements two above the if liable is officer parole or probation A

 legal other some under liable be ,however ,may officer The 1983. § under liability no is there that

 driving negligent whose officer probation a ,example For .)code penal the under or tort .,g.e (authority

 negligent for law tort under liable be may transporting is she whom probationer a to injury in results

 prevent not does elements above the of any of absence the ,course Of 1983. §under not but ,driving

 is succeed will suit the Whether .time any at anybody by filed be may suits; suit 1983 § a of filing the

 .matter different a
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

3 CHAPTER

32

 qualified the raise may lawsuits 1983 § in defendants that ruled has Court Supreme State United The

 may and ,judgment summary for motion and dismiss to motion both in defense immunity) faith good(

.17trial to prior case same the in times both denials appeal to able be

CONSIDERATIONS LEGAL OTHER .III

 succeed cases 1983 § which under circumstances the better understand to order in required is tionelabora some ,)above discussed as (succeed to elements two only require cases 1983 § Although

 .fail or

 Level Constitutional Reach Must Violation The .A

 ,actionable are violations serious unusually that except ,clear exactly not is means this What .tionpropor constitutional of be must violation The 1983. § under liability to lead rights of violations all Not

 gross “of ,noted previously ,requirement the in reflected is This .not are ones serious less whereas

 :scholar one of words the In .etc” ,indifference deliberate “or” negligence

 attack under conditions or acts the which in cases numerous encounter Courts .abuse tutionalconsti of level a reaches it unless treatment of type or condition given a prohibit cannot Courts

 so not are practices the because act to powerless are courts the but . . . undesirable clearly are

.18right constitutional a violate to as abusive

 to rise to courts the by held been have officers parole or probation involving wrongs few Relatively

 § found have courts where Cases 1983. § through remediable violation constitutional a of level the

 on forward go to action 1983 § a allowing by .,g.e (available be to likely or available be to either 1983

:include) involved is right constitutional a that ground the

.19violator parole a as parolee a confine wrongfully to another with Conspiring■ 

.20release work or furlough a of denial Arbitrary■ 

.21hearing revocation parole a to right the of Denial■ 

 .,e.i (abuse substance for programs treatment based-faith attend to probationer a Compelling■ 

.22(Anonymous Alcoholics

.23positive-HIV as status health s’probationer a of disclosure Improper■ 

.24violation constitutional a be also may status HIV s’parolee a disclose to failure Improper■ 

 ,Government Local a or Person Natural a Be Must Defendant The .B

State a Not but

 liable held be could persons natural only ,enacted originally was 1871 of Act Rights Civil the When

 sovereign of doctrine the of because exempt were governments local and State .suits 1983 § in

 Social of Department .v Monell in ,Court Supreme States United the ,however 1978, In .immunity

 unconstitutional allegedly the if liable held be may government of units local the that held ,25Services

 qualify may act single a Even .custom or policy official an of part a as officer the by taken was action

Monell The .26official or body policymaking appropriate the by undertaken is it if policy official an as

 well and permanent so “be must practice the ,custom a as qualify to order in ,that explained Court

 requirement the defined court One 27”.law of force the with usage or custom a constitute to as settled

:follows as

 spread-wide and persistent a show to necessary generally is it ,custom or policy a establish To

 the to attributed be must customs such of knowledge constructive or actual ,Moreover .practice
Cases 1983 § :Law Federal Under Liability Civil

3 CHAPTER

33

 to insufficient are incidents isolated or acts random Normally .municipality the of body governing

.28policy or custom a establish

 of not is This .only governments local to applies it because immunity state affect not does Monell

 officer state the against filed be can cases rights civil; however ,officers state to consolation much

 social involved Monell Although .succeeds suit the if liable personally be will she or he and ,himself

 .agencies local many to it applied already have courts Lower .tionsopera parole/probation local to apply not does it believe to reason no is there ,personnel services

 immune is sovereign a that means which” ,immunity sovereign “of doctrine the by liability from latedinsu are they because sued be cannot generally states ,sued be can governments local Whereas

 the of because court federal in sued be cannot States .wrong no do can it because lawsuit from

 sovereign if is ,however ,rule this to exception big one The .30jurisdictions own their in suits to jectedsub being from immune similarly are states that held have courts Federal .29Amendment Eleventh

 varying in immunity sovereign waived have states many and (state the by waived been has immunity

 .decisions court or legislation through) sued be to themselves allowing thus ,degrees

LAWSUITS 1983 § IN DEFENSES .IV

 .case the of facts the upon depending usually ,cases 1983 § to defenses of number a are There

 faith good the is One .here discussed are) technical more being others the (defenses those of Two

 .defense cause probable the other the and defense

Fitzgerald .v Harlow in Defined as Defense Faith Good The .A

 have would person reasonable a which of right constitutional or statutory established clearly a olatedvi she or he unless liable civilly not is officer an that holds cases 1983 § in defense” faith good “The

 :said Court the wherein ,Fitzgerald .v Harlow of case 1983 the in given was definition This .known

 are generally functions discretionary performing officials government that hold therefore We

 The . . . .known have would person reasonable a which of right constitutional or statutory lishedestab clearly a violate not does conduct their as insofar damages civil for liability from shielded

 was law that whether but ,law applicable currently the only not ,determine may appropriately judge

 ,developments legal subsequent anticipate to expected be reasonably not could official an ,lishedestab clearly not was time that at law the If .occurred action an time the at established clearly

 as identified previously not conduct forbade law the that” know “to said be fairly he could nor

.31(omitted notes and citations (.unlawful

 unless liability against defend to available be will Harlow in articulated defense faith good the ,Thus

 ,right constitutional or statutory established clearly a violated officer an) a (:met are requirements two

 established be must Both .known have would person reasonable a which of one is right the) b (and

 .imposed is liability no otherwise; plaintiff the by

 White two involved it (officers parole or probation involve not did ,above ,case Harlow the Although

 held ,32Creighton .v Anderson in ,Court Supreme the ,)Nixon President former under aides House

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

 that believing ,home a of search warrantless a conducted officers ,Anderson In .responsibilities their

 Fourth the of violation for sued home the occupied that family The .there hiding was robber bank a

 that held Court Supreme the ,appeal On .seizure and search unreasonable against right Amendment

 the also but ,entries home about rule general the only not considered have should court lower the

 whether was inquiry proper the ,Court the to According .entry of time the at agents the to known facts

 that surrounding circumstances the that concluded have could officer enforcement law reasonable a

 warrantless a justify then would which ,circumstances exigent and cause probable to up added case
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

3 CHAPTER

34

 to apply should This .applies defense faith good the then ,possible is conclusion a such If .search

 have could officer parole or probation reasonable a if ,short In .well as officers parole and probation

 the then ,valid and legal taken action the make act the surrounding circumstances the that concluded

 .apply should defense faith good

 Fifth the for Appeals of Court Federal The?” established clearly “be to considered right a is When

 established law the ,acted defendant the when ,that show must plaintiff A “:standard this sets Circuit

 acts her or his understood have would official reasonable a that clearly so right a of contours the

 the of lawfulness the on differ could officials public reasonable If “:that added The” .unlawful were

 although ,that noting worth is It 33”.immunity qualified to entitled is defendant the ,actions s’defendant

.elsewhere embraced been not has it ,34Circuit Fifth the control to continues case this

 knowledge their ,training corrections and courses college from rights these with familiar be may cersoffi Although .offenders of rights federal and constitutional basic the know must officers ,First .ciesagen and officers parole and probation for implications important two has defense faith good The

 constitutional and procedure criminal in decisions court new of light in constantly updated be should

 must agencies ,Moreover .rights constitutional establish that cases new of officers their inform to ciesagen justice criminal on obligation an places it that is test Harlow the of implication second The .law

 Supreme States United the from only not cases decided reflect to guidelines or manuals their update

 .jurisdiction their in courts federal from also but Court

 Agencies to Available Not Defense Faith Good 1.

 their in sued actors government to available is Harlow in articulated defense faith good the Although

Owen In .themselves agencies government the to extend not does defense the ,capacities individual

 test acid the longer no is blameworthiness individual that Stating .defense faith good the invoke notcan 1983 § under sued municipality a that held Court Supreme .S.U the ,35Independence of City .v

 in factor a as fault joined has spreading-loss equitable of principle the “that said Court the ,liability of

:thus concluded decision The 36”.misconduct official of costs the distributing

 he that assured is authority governmental of abuse an by harmed is who individual innocent The

 good in himself conducts he as long so ,official offending The .injury his for compensated be will

 him protect will immunity qualified a that knowledge the in secure business his about go may ,faith

 a as populace the to chargeable appropriately more are that damages for liability personal from

.37whole

 where ,that suggests it because agencies parole and probation concern should decision The

 be not may agencies those ,parolees or probationers of rights constitutional violated have agencies

 at looking of way One .themselves actors government the as readily as hook proverbial the off let

 not did they if rights constitutional violating for excused be may officers individual that is holding this

 hoped ,fact in ,Court Owen The .liable held be will agencies but ,better known) have not could and(

 policymaking in those encourage might city the against levied be may damages that threat the that

 liability of threat the that anticipated Court the ,addition In .rights constitutional on infringements alunintention of likelihood the minimize to designed programs and rules internal institute to positions

 the supervise government of levels higher at officials which with attentiveness the increase to ought

 .subordinates their of conduct

 Cases Amendment Fourth in Only but ,Defense Cause Probable The .B

 states It .defense cause probable the is chapter this in discussed 1983 § in defense second The

 defense of type limited a is It .present is cause probable where cases in liable not is officer the that

 other of violations alleging cases in used be cannot It .legally act to able be to officer parole or tionproba the for required is cause probable where cases amendment fourth in only applies it because

 .amendments th14 or ,th6 ,th5 ,st1 the as such ,rights constitutional
Cases 1983 § :Law Federal Under Liability Civil

3 CHAPTER

35

 Amendment Fourth the violated who officers police to defense the of availability the evaluating In

 of Court Circuit Ninth The ,arrest and search to cause probable had they that belief mistaken the in

 reasonable a because claim this on immunity qualified to entitled are officers the that “held Appeals

38“.existed cause probable that believed have could officer

 probable the held case Bivens aforementioned the in decision Appeals of Court Circuit Second The

:follows as operates defense cause

 is first the ,elements two of composed is conduct police governing standard The .sense tutionalconsti the in cause probable prove and allege not need officer police the prevail to ,Therefore

 he that only not prove and allege must officer the Thus .objective is second the and subjective

 And .reasonable was belief his that also but ,lawful was conduct his that ,faith good in ,believed

 validity the in belief reasonable and faith good prove and allege to defense a is it that hold we so

 the way the in search and arrest the out carrying for necessity the in and search and arrest the of

.39conducted was search the and made was arrest

 as defined is which ,cause probable of concept Amendment Fourth the for than lower is standard This

 to themselves in sufficient are information trustworthy reasonably had they which of and edgeknowl’ officers the within circumstances and facts the when exists It ....suspicion bare than more

.40committed being is or been has offense an that belief the in caution reasonable of man a warrant

COMPARED CASES TORT STATE AND 1983 § .V

 types two these of comparison a presents 1–3 Table .identified are features basic their unless fusingcon be can) chapter this in discussed (cases 1983 § and) 2 chapter in discussed (cases tort State

 .officers parole/probation against brought usually are that lawsuits of

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

Cases Tort State Cases) 1983 (§Federal

law state on Based law federal on Based

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

cases decided on based Usually 1871 in passed was Law

court state in tried Usually court federal in tried Usually

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

 secured right a of or right constitutional a of violation is liability for Basis

law federal by

 violation in another of property or person to injury is liability for Basis

law state by imposed duty a of

 established clearly a violate not did officer the means defense” faith Good“

 have should person reasonable a which of right federal or constitutional

known

 belief honest the in acted officer the means usually defense” faith Good“

circumstances the under appropriate was taken action the that
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

3 CHAPTER

36

SUMMARY

 of 42 Title on Based .cases 1983 Section as known generally are court federal in cases liability Civil

 first The .succeed to are they if requirements two need cases these 1983, § ,Code States United the

 in defenses of number a are There .law) state by not but (federal by given right a of or right tutionalconsti a of be must violation the that is second the; law of color under acted defendant the that is

 ,defense faith good the is first The .chapter this in discussed are which of two ,cases 1983 Section

 or statutory established clearly a violated she or he unless liable not is officer the that meaning

 is defense second The .cases tort state in definition faith good the from different is cases 1983 tionSec in definition faith good This .known have would person reasonable a which of right constitutional

 action the when present was cause probable if liable not is officer the that meaning ,cause probable

 to apply not does and cases Amendment Fourth to only limited is ,however ,defense This .taken was

 .right constitutional other any of violations

NOTES

 77 ,Investigations Abuse Sex Child of Context the in Framed be to not Right a and ,Standard enceIndiffer Deliberate a ,Perex .v Devereaux? Devereaux Roger Framed Who ,Swanson .A Erika 1.

 .(2002) 901 .Rev.L Kent-Chicago

.(2006) 1983 § ,Code.S.U 42 2.

 .(Act Klan Klux Ku the as known Also (13, Stat 17; 22 .ch 1871, 20, .Apr of Act 3.

.(2010 July ,Westlaw (63 § Rights Civil d2 .Jur .Am 15 4.

.(1961) 167 .S.U 365 ,Pape .v Monroe 5.

.(1972) 471 .S.U 408 ,Brewer .v Morrissey 6.

 serious more the in people which doubt of kind the “is definition accepted commonly one but ,agespercent of terms in” doubt reasonable a beyond proof “quantify to reluctant famously are Courts 7.

 186 § Evidence d2 .Jur .Am 29” (upon act to willing be might lives own their of affairs important and

.((2010 July ,Westlaw(

 .(1941) 326 299, .S.U 313 ,Classic .v States United quoting) (1988 (49 42, .S.U 487 ,Atkins .v West 8.

 law state of color under acted officers holding) (1977 .Cir th7 (1101 1098, d.2F 559 ,Murphy .v Davis 9.

.(badges and guns carrying were they because fight a provoking in

 of Purposes the For Law State of Color Under Act Officials State Duty-Off When ,Libby Steve 10.

 .(1992) 725 .Rev.L.U.S Memphis 22 1983, Section

.(1971) 410 388, .S.U 403 ,Narcotics of Bureau .Fed of Agents Named Unknown Six .v Bivens 11.

.(1999) 609 603, US 526 ,Layne .v Wilson 12.

 .F 806 ,Authority Housing Philadelphia .v Hurt); 1992 .Cir th9 (735 d.2F 973 ,Martin .v Cabrera 13.

.(1992 .Pa .D.E (515 .Supp

.(2010 July ,Westlaw (77 § Rights Civil d2 .Jur .Am 15 14.

.(1993 Cir d2 (96 d.3F 1 ,York New of City .v Chan 15.

.(1995 .Cir th11 (700 d.2F 769 .Inc ,Services Health Prison .v Ancata 16.

 398 § Employees and Officers Public d2 .Jur .Am C63) 1996 (299 .S.U 516 ,Pelletier .v Behrens 17.

.(2010 July ,Westlaw(
Cases 1983 § :Law Federal Under Liability Civil

3 CHAPTER

37

 841, .Rev.L.Va 72 ,Reform Prison in Role Judicial Emerging An :Fairness and Decency ,Note 18.

.(1971) 843

.(1969 (Pa DC (1023 Supp.F 295 ,Putnam .v Ackerman 19.

 Probation of Board Pennsylvania .v Gahagan); 1974 Va DC (976 .Supp.F 376 ,Dunn .v Brooks 20.

.(1978 Pa DC (1326 .Supp.F 444 ,Parole and

.(1972) 471 .S.U 408 ,Brewer .v Morrissey 21.

 .(1997 .Cir d2 (1068 d.3F 115 ,bationPro of Department County Orange .v Warner); 2001 .App .Ct .Wash (1091 d.3P 24 ,Garcia re In 22.

.(2000 .Cir th10 (1171 d.3F 218 ,Keenan .v Herring 23.

 warn to failure the deciding without assumed) (1998 .Cir th8 (824 d.3F 141 ,Schoop .v Greer See 24.

 ground the on decided case; violation constitutional a was status HIV his of girlfriend s’parolee the

.(time the at established clearly not was right such that

.(1978) 658 .S.U 436 25.

.(2010 October ,Westlaw (3 § at 549, .R.L.A 81 26.

 New of City .v .Z.T also see); 1978 (691 658, .S.U 436 ,Services Social of Department .v Monell 27.

.(2009 NY .D.E (152 .d.2Supp.F 635 ,York

 .(1986 .Cir th11 (1496 .d.2F 787 ,Georgia ,s’Mary .St of City .v Depew 28.

.(2010 July ,Westlaw (99 § Rights Civil d2 .Jur .Am 15 29.

 ;(2003 NM.D (1310 d.2Supp.F 266 ,Danley .v Nichols); 1999 (1252 d.2P 988 ,Leach .v Doe 30.

.(1989) 58 .S.U 491 ,Police State of t’Dep Michigan .v Will

.(1982) 818 800, .S.U 457 ,Fitzgerald .v Harlow 31.

.(1987) 635 .S.U 483 ,Creighton .v Anderson 32.

.(1992 .Cir th5 (1268 d.2F 957 ,Arlington of City .v Fraire 33.

 WL 2007 ,Parish River Red .v Scallion); 2001 .Cir th5 (481 d.3F 246 ,County Hidalgo .v Bazan 34.

.(2007 .La.D.W (496624

.(1980) 622 .S.U 445 35.

657. 622, .S.U 445 ,Mo ,Independence of City .v Owen 36.

657. 622, .S.U 445 ,Mo ,Independence of City .v Owen 37.

 § at 7, .Fed .R.L.A 61 also See .)2010 .Cir th9 (869 841, .d.3F 593 ,Diego San of County .v Crowe 38.

 .(2010 October ,Westlaw] (a[2

 .Cir .d2 (348 1339, d.2F 456 1972, .,Narc of .Bur .Fed of Agents Named Unknown Six .v Bivens 39.

.(1972

.(1925) 162 132, .S.U 267 ,States United .v Carroll quoting 175-176 160, .S.U 338 .,S.U .v Brinegar 40.

4 CHAPTER

 ,Representation Legal

 and ,Fees’ Attorneys

 Indemnification

 INTRODUCTION

 REPRESENTATION LEGAL .I

 Cases Liability Civil In .A

 Cases Liability Criminal In .B

 FEES’ ATTORNEYS .II

 Cases Tort State In .A

 Cases) Federal (1983 § In .B

 LIABILITY OF CASE IN INDEMNIFICATION .III

 TWO IN INDEMNIFICATION AND ,FEES’ ATTORNEYS ,REPRESENTATION LEGAL .IV

KANSAS AND TEXAS :STATES

 Texas In .A

Kansas In .B

Insurance Liability Professional .V

SERVICES PROBATION OF PRIVATIZATION .VI

 SUMMARY

NOTES

39

Indemnification and ,Fees’ Attorneys ,Representation Legal

4 Chapter

41

U R

 three has law federal or state under filed lawsuit liability a faces who officer parole/probation A

 :concerns primary

.(?me represent will who .e.i (representation Legal■ 

.(?attorney my for pay will who .e.i (fees’ Attorneys■ 

 found am I if imposed be may that damages monetary the for pay will who .e.i (Indemnification■ 

.(?liable

 ,law case and statutes recent and historical of light the in below discussed are topics three These

 survey other no ,knowledge our To .monograph this of edition first the for s1980 early the in tionwidena general attorneys of offices the to distributed was which survey extensive an from findings of and

 The .officers parole/probation to regard with issues these on specifically conducted been has study or

 current most the provide to order in sources documentary reliable other and ,law case ,statutes edupdat cites topics these of discussion the ,hence; old century quarter a than more are results survey

.information available

R R L L .

 parole or probation of acts of types what determine that guidelines and statutes their in differ States

 assistance legal provide to willing more are states ,general In .defend will state particular a officers

 defendants as named are who those than rather ,cases civil in sued are who employees state to

 both for ,time the of some least at ,actions civil covered survey the in states All .cases criminal in

 would they that indicated states of percentage substantial a ,However .officers parole and probation

 states Many .suits civil of types all in defendant employee state a for representation legal provide not

 defendants for representation legal provide will state a which for actions civil of types the limited have

 .employees state as capacity their in sued are who

ases Liability ivil n .

 the ,Generally .suits civil in defend will they that acts of types the on limitations few set states Most

 The” .faith good “in act must officer the that require additionally states some ,”requirement ploymentem of scope “the to addition In .state each by defined is” employment of course and Scope “.mentemploy their of course and scope the within occur must omission or act s’officer probation or parole

 In .state to state from varies definition its and ,law tort state in defined-well not is” faith good “in term

 not has officer the that means it ,states other In” .negligent grossly not “means faith good states some

 “negligent grossly not “is officer an that hold states some ,Furthermore .rule or law state a violated

 the under appropriate and proper was action her or his that belief honest the with acts officer an if

 federal in filed suits for law case 1983 § in” faith good “of definition the ,contrast By .circumstances

 clearly a violated she or he unless liable held be not will officer the that means it— clear is courts

 .known have would person reasonable a which of right constitutional or statutory established

 in but ,jurisdictions judicial and states between differs also” negligence gross “of meaning The

 the of disregard reckless a of short falls negligence gross ‘that consider courts most “...general

1“.kind in not and ,degree in only negligence ordinary from differs and ,consequences

 a of lack The 

 for and plaintiffs for hurdle difficult a presents” negligence “to compared as term the of definition clear

.overcome to defendants

 as serve may general attorney the ,guidelines state within is behavior s’officer an if ,states many In

of defense the for provisions other no have states Other .lawsuit the in counsel legal s’officer the
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

4 Chapter

42

 insurance applicable an under comes act particular the if ,however ,states some In .employees state

 risky be may policy a such on reliance but; defense the undertake may counsel s’insurer the ,policy

 outside or in ,settlement a of part as policy liability the of limit monetary the pay sometimes will niescompa insurance ,instances these In .low unrealistically are payment liability of limits policy the if

 the and) s(plaintiff the between Settlements .trial at defense for suit a preparing of lieu in ,court of

 a of processes expensive the avoid to order in made often are expensive less be can) s(defendant

 .trial and lawsuit

 personal of risks the inherit officers parole or probation that possible is it ,settled is case a Once

 will officer the that means This .them against claim a of balance the for responsibility and exposure

 been having by damaged be will agency the and officer the of reputations the ,case either In .tlementset the under paid not were that awards monetary of balance remaining any personally pay to have

 political and Public .trial at won been have could case the if even ,case liability civil a in liable held

 an by incurred was liability which in cases severe of aftermath the in wane can entities these of tionsopera the to important are that issues the and ,agencies ,officers parole and probation for support

.omission or act s’agency or s’individual

 These .employee state a defend to expense state at hired be to lawyers outside permit states Some

 the if costs court and fees’ lawyers for agency or state the by reimbursement allow usually states

 On .officer the defend to refused has office s’general attorney s’state the after suit the wins employee

 held thus and ,faith bad in acted have to found is individual the and officer the of defense the dertakeun does state the if that require states three least at ,results survey the to according ,hand other the

 familiar be should officers and ,officials state for representation legal obtaining in involved certaintiesun are there ,Thus .costs and fees associated for state the reimburse to have may officer the ,liable

 .employed are they which in jurisdiction local and state the by forth set guidelines and laws the with

 an of defense the undertake to whether in discretion considerable has office s’general attorney The

2Jersey New .,g.e see (statutes’ states Most .suit civil a in defendant a as named is who officer

 and 

3Carolina North

 ;employment of course and scope the outside) a (was omission or act s’employee the unless ployeesem state to assistance legal provide to obligated is general attorney the that provide) 

 the of defense the) c (or; misconduct willful or ,corruption ,malice actual ,fraud actual involved) b (or

 not would act the of defense the) d (or; state the within interest of conflict a create would employee

 .state of interests best the in be

 parole or probation a defend to refuses office s’general attorney the which in cases liability civil In

 first the for survey the of time the of As .counsel legal private obtain to need will officer the ,officer

 s’state the appealing for procedures had ,Vermont and California ,states two only ,book this of edition

 the whether to as determination judicial a required California only and; officer the defend to refusal

 .state the by assistance legal to entitled statutorily was employee state

 their with themselves familiarize officers parole and probation that imperative is it ,earlier stated As

 25 than more been has It .book this in presented topics the concerning law case and statutes s’state

 that likely than more is it and administered was based is book this which upon survey the since years

 Jersey New ,example For .time that since changed have guidelines and ,law case ,statutes s’state a

 liability civil a in employee an defend to refusal s’state the of ability appeal the on guidelines has now

 attorney the by refusal a of review judicial that held recently Jersey New of Court Supreme The .suit

 ,arbitrary “...is refusal the that finds it unless court a by reversed be not should decision s’general neyattor the that but ,appropriate is Act Claims Tort State the under employee state a defend to general

 a as record the in evidence credible substantial by supported not is it or unreasonable or capricious

4“.whole

 this if ,jury or judge a prejudice to serve could officer the defend to refuses state a that fact The

 with ,survey the to according ,However .proceeding legal a in evidence as admissible is information
Indemnification and ,Fees’ Attorneys ,Representation Legal

4 Chapter

43

 for provision no made states of majority the; Oregon and ,Oklahoma ,Maryland of exception the

 be could evidence Such .employee its a defend to refusal s’state the of evidence the trial at barring

/and scope the outside being omission or act the to due was defend to refusal s’state the that ,rantedunwar or warranted whether ,implication the of because defense s’employee state the to damaging

 of denial for exception statutory adverse other some or ,duty or authority s’officer the of course or

.representation

 ases Liability riminal n .B

 involved allegedly is officer parole or probation the if matter different a present cases liability Criminal

 of defense a undertake not did states the of half almost ,survey the In .omission or act criminal a in

 charges the if officer the prosecutes state the ,states many In .liability criminal of cases in officer an

 .employee state the and itself between estinter of conflict a to due defense a provide to unable be would state the thus; liability criminal involve

 policies their that and arisen never had) case criminal a in sued officer probation or parole a .e.i (tionsitua the that responded states Other .interest of conflict barring ,office s’general attorney the of tiondiscre the at is representation legal state that indicated states the of several from responses Survey

 the that indicated unequivocally survey the in states few very ,Hence .unclear were matter this on

.liability criminal involving matter a were case the if officer an of defense the undertake would state

F ’ R .

 liability civil in fees’ attorneys awarding and assessing for guidelines and rules the of discussion The

 1983 § in fees) b (and cases tort state in fees) a (headings distinct two under addressed is cases

 different generally are and ,state to state from differ cases state for guidelines and rules The .cases

 filed cases 1983 § for fees’ attorneys to related guidelines and rules The .cases federal for those from

 which upon information of sources federal and state several are There .extensive are courts federal in

 For .evidence and procedure of codes and ,law case ,statutes :based are below discussions the

 modeled be not may or may which rules evidentiary and procedural own its has state each ,instance

.procedure or evidence of rules federal the on

 ases ort tate n .

 party which of regardless fees’ attorneys pays party each that is cases tort state in rule general The

 .officer probation a against lawsuit tort state a file may probationer a ,example For .trial at prevails

 the loses or wins she whether fees s’attorney own her paying for responsible is officer probation The

 states few a in ,However .fees s’attorney own her or his pay to have also would probationer The .case

 the loses officer parole or probation defendant the that event the In .apply not may rule general this

 .fees’ attorneys s’plaintiff pay to officer parole or probation defendant the order may court the ,case

 cases in apply not may fees s’attorney awarding and assessing of rules the that note to important is It

 the During .decree consent a to pursuant not are or trial a without court the of outside settled are that

 to free are lawsuit the to parties the ,settlement a determining of processes arbitration or mediation

 pay should who and ,any if ,fees of amount the determine to and settlement the of terms the fashion

.5them

 ases) Federal (1983 § n .B

 apply that those from differ courts district federal in filed cases 1983 § in guidelines and rules The

 1976 of Act Awards Fees s’Attorney Rights Civil the passed Congress 1976, In .cases tort state to

 in party prevailing the to fees s’attorney award to court a permits legislation This .)1988 § .C.S.U 42(

 :part in provides Act Fees s’Attorney The .suits rights civil federal of types some
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

4 Chapter

44

 1986 and 1985, 1983, 1982, 1981, Sections of provision a enforce to proceeding or action any In

 may ,discretion its in ,Court the 1964, of Act Rights Civil the of VI Title or . . . Code .S.U 42 of

 the of part as fee s’attorney reasonable a ,States United the than other ,party prevailing the allow

.6...costs

 American “the to due rare relatively was fees’ attorneys of award an ,act this of passage the to Prior

.7expenses and fees s’attorney own their pay to party each required which ,rule” pays loser “or ,”Rule

 civil federal a in party prevailing a that likely more it made Act Fees s’Attorney the of passage The

.8lawyers to attractive more suits such making thus ,fees s’attorney collect can suit rights

 .action federal a in” party prevailing “the to fees s’attorney of award an authorizes) b(1988 Section

.9here consider to points two are There

 s’attorney to entitled never is plaintiff se pro prevailing a ,First 

 choose who attorneys to applies This .attorney an by represented not is litigant se pro a because fees

.11fees s’attorney recover to mittedper be not should defendants prevailing ,Second .10lawsuit a to party a as themselves represent to

 the on relief actual some awarded has court the when prevails party ,case 1983 §a in ,Generally

 that enough not is It .12altered been has parties the of relationship legal the which in claim a of merits

 there ,13plaintiff the toward conduct its alter to party losing a caused that catalyst a was lawsuit the

 of award an permit to necessary parties the of relationship legal the of alteration material “a be must

 consent ordered-court a or case a of merits the on judgment s’court a of result a as 14”fees s’attorney

.decree

 the where even appropriate found been was fees of award an 15Gagne .v Maher in ,example For

 in prevails party a when awarded be may fees s’attorney that said Court Supreme .S.U the ,thermoreFur .agreement decree consent a under settlement voluntary a reached and trial a avoided parties

 means This .16violated been have rights federal that determination judicial no with decree consent a

 Even .fees s’attorney pay to made be may defendant the ,court of out settled is case the if even that

 prevailing “the be still can she or he ,case the of issues the all on succeed not does plaintiff the if

 be thus can case a” lose “actually not does who defendant A 1988.17 § of purposes the for” party

 named a not is it though even ,fees s’attorney the pay to ordered be can sued individual the ployedem that unit or agency governmental the ,Moreover .fees’ attorneys s’plaintiff the pay to required

.18defendant

 the on not but fees’ attorneys awarded be also may officers parole/probation prevailing ,act this Under

 to found is she or he because fees awarded usually is plaintiff A .plaintiffs prevailing as basis same

 she or he”; win “only not must ,however ,employee public a as such defendant A .19suit the won have

 ,therefore ,law The .20unfounded or ,unreasonable ,frivolous was suit s’plaintiff the that show must

 be may this Although .officer parole/probation the against lawsuit a bringing person the favor to tends

 .officers and agencies government by actions tionalunconstitu deter to designed was law the because surprising not is it ,officers government to harsh

 and 1983 §§ ,Originally .case 1980 a in expanded was Act Fees’ Attorneys the of application The

 .S.U the ,21Thiboutot .v Maine in ,However .rights constitutional of violations to applied only were 1988

 fees legal recover could plaintiffs prevailing that ruled Court the ,Furthermore .statute federal any derun created rights’ citizens any of violations for sue could individuals that determined Court Supreme

 bringing of means further with individuals provide to served has decision This .party losing the from

 to grants provide that programs .,g.e (programs federal in participate that agencies parole and bationPro .programs federal of administration the as such areas in rights civil beyond law federal under suit

 for fees s’attorney pay to have also may agencies parole and probation The .programs these to cableappli laws federal violate they if 1983, § under lawsuits to subjected be potentially can) agencies the

 the when awarded are fees s’attorney ,cases these In .lawsuit the lose agencies the if party other the

.agency the over prevails suit the bringing individual
Indemnification and ,Fees’ Attorneys ,Representation Legal

4 Chapter

45

 fee a of appropriateness the determining for standards ambiguous adopted had courts federal Lower

 of any that holding by Eckerhart .v Hensley in standards the clarified Court Supreme .S.U The .award

:22court a by awarded be can that fees s’neyattor of amount reasonable or” lodestar “the calculating in considered be can factors following the

.attorney the by required labor and time The■ 

.presented questions legal the of difficulty and novelty The■ 

.services legal the perform to required skill The■ 

.case the of acceptance to due attorney the by employment other of preclusion The■ 

.community the in fee customary The■ 

.case the winning on contingent or fixed case is fee the Whether■ 

.circumstances or client the by imposed limitations Time■ 

.obtained results the and involved amount The■ 

.attorney the of ability and ,reputation ,experience The■ 

.case the of undesirability The■ 

.client the with relationship professional the of length and nature The■ 

.cases similar in Awards■ 

 the to fees s’attorney of awards that surmised be can it ,available currently is research no Although

 tort state under of instead 1983, § under cases file to plaintiffs encouraged have may party prevailing

 case ,addition In .fees collect can they which for cases accept to likely more are Attorneys .statutes

 to awarded damages exceed grossly may cases some in awards fees’ attorneys the that shows law

 $162,209.50 awarded Circuit Eleventh the for Appeals of Court Federal the ,case one In .plaintiffs

 award damage the though even officer police a involving case a in costs court and fees’ attorneys in

 enforcement law another In .23damages punitive in $10,000 and compensatory in $500 only was

 fees’ attorneys in $66,535 of award an upheld Circuit Ninth the for Appeals of Court Federal the ,case

 nominal of award $1 a for fees’ attorneys in $5,000 of award the approved Circuit Fifth the for pealsAp of Court Federal the ,case another yet In .24damages in $1 only awarded was who plaintiff a to

 Supreme States United the by reversed was ,however ,award fees’ attorneys $5,000 The .25damages

 ,one this as such cases in” ,party prevailing “a was plaintiff although that held which appeal on Court

26“.all at fee no usually is fee reasonable only “the

L B L F F .

 are employees when court the by ordered and assessed costs and damages the for pay will Who

 reimbursement or indemnification for provide states the of majority A? actions their for liable found

 is there ,However .27lawsuit a of result a as employees agency against assessed damages civil for

 states Some .28pay to willing are agencies their and states that amount the in variation considerable

 majority the yet ,employee state a against suit a in pay will they money of amount the on limit no set

 vary also pay will state the which under conditions ,addition In .29limit monetary some set states of

 maximum the than larger amount an plaintiff the awards court the If .ambiguous sometimes are and

 range ,therefore ,States .difference the pay to have likely will employee the ,state the by allowed

 or probation a of behalf on award the of amount unlimited an paying possibly to nothing paying from

 officer parole or probation the if award entire or partial a pay will state the ,Generally .officer parole

.30authority her or his of course and scope the within acted
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

4 Chapter

46

 not does this ,sued are who officers for indemnification of form some provide states most Although

 was based is liability of finding the which on act the if only judgment the pay help will states of jorityma The .case every in officer parole or probation a indemnify automatically will state the that mean

.jurisdictions across differ may phrase this of definition The” .employment of scope the within“

 the ,general attorney state the by made is determination The? indemnification for eligibility of posepur for binding is faith good if determines Who :is question important an ,purposes procedural For

 in acted employee the whether states decision court the ,states some In .agency state the or ,court

 eligible is employee the if determine to investigation pretrial a makes state the ,however ,If .faith bad

 good in acted not had employee the that finds case the on decision court subsequent a if even ,nityindem to state the bind potentially could investigation that of result the ,representation legal state for

 states some ,survey the In .unclear are faith good determining for steps the ,states some In .faith

 other In .decided been not had case a such ,officers parole/probation to respect with ,that indicated

 the of consideration without determined be must” employment of scope “of matter the only ,states

 .faith good of absence or presence the of issue broader

 liability from officers exempt ,law by ,which jurisdictions are there that indicated also survey The

 government the sue must plaintiffs that provide specifically jurisdictions Other .cases tort state in

 the cases tort in that states ,effect in and ,employees its for not but ,government federal the for nityimmu waives Act Claims Law Tort Federal the ,example For .cases tort in ,officer the not ,employer

 under acting while committed acts negligent or wrongful for liability civil from immunity absolute ,tionsexcep few with ,employees federal grants ,Act Westfall the as known also 1988, of Act pensationCom Tort and Reform Liability Employees Federal The .31sued be to is ,officer the not ,government

 federal the not ,sued be to is officer the ,cases 1983 § in ,contrast By .32employment of scope the

.33government

 capacity individual or/and official her or his in sued is who officer parole/probation a ,summary In

 the by representation and assistance legal for request s’officer An .uncertainties of array an faces

 agency and ,statutes s’state her or his upon dependent is but ,provided be may state the or agency

 more to subjected be officer the ,indemnification for provisions has state the If .guidelines and rules

 or defined-well a be not may or may” faith good “which in ,faith good of determination one than

 by employee an against rule may court a ,inconsistencies these Despite .term applied consistently

 if Even .turn in indemnification of claim s’employee the negates which ,faith good of claim a negating

 place that states in particularly ,covered be may expenses and fees all not ,indemnified is officer the

 in brought is lawsuit the whether ,Finally .indemnification for awards and fees of amount the on limit a

 .case s’officer the to apply will indemnification whether in factor decisive a is court federal or state

 , F ’ R , R R L L .V

X : W F 

K 

 .another to state one from varies indemnification and ,fees s’attorney ,representation legal on law The

 between occur can that differences the illustrate to below summarized are states two of laws The

.states

 exas n .

 known ,officers Probation .purposes other for employees local considered are they although ,ficationindemni and representation of purposes for officers state are officers parole and probation ,Texas In

 Corrections and Supervision Community by employed are ,Officers Supervision Community as

county the by paid generally are officers the and ,35agencies judicial local are These .34Departments
Indemnification and ,Fees’ Attorneys ,Representation Legal

4 Chapter

47

 by provided also is supervision community adult for funding but ,jurisdiction has court the which in

 is) TDCJ (Justice Criminal of Department Texas The .36Division Assistance Justice Criminal Texas the

 employees are officers parole state ,thus ,operates Division Parole the which under agency state the

 ,(IPOs (Officers Parole Institutional) 1 (:Texas in officers parole of types two are There .state the of

 Institution Correctional the in inmates with work IPOs .Operations Field in work who officers) 2 (and

 state in officers operations field of oversight has Division Parole TDCJ The .37agency state pendentinde-quasi is which Paroles and Pardons of Board Texas the by overseen are but ,TDCJ of Division

.38supervision mandatory on individuals and parolees supervise who offices regional

 regulate that statutes the contains Code Remedies and Practices Civil Texas the of 104 Chapter

 attorney state the that provides law Texas .servants public its of conduct the for liability s’state the

 indemnifies state the and ,instances certain in employees defend to obliged is office s’general

 s’attorney and ,costs court ,damages pay to required is state The .39liable held are who employees

 the if conduct s’officer an to only apply laws these ,However .40employees against adjudicated fees

 employment of scope and course the in omissions or acts official on based are damages and claims

 are damages the if indemnify not will state The .41office s’general attorney state the by determined as

 an against filed is lawsuit civil a When 42”.negligence gross or act wrongful or wilful “a of result the

 opportunity an given and served be must general attorney the that requires further law the ,employee

 the of days 10 within office s’general attorney the to given be must notification or ,suit the defend to

 state of defense for Funds .43sued being is she or he that notice with served is officer the that date

 used are and Fund Revenue General the from general attorney the to appropriated are employees

 discovery to respond and conduct ,suit the to parties depose ,investigate to general attorney the for

 participation actual for and ,trial for evidence other and exhibits prepare ,trial for prepare ,processes

.44trial at

 liability State .damages recoverable amounts specific to limited is law Texas under Indemnification

.45lawsuit a of basis the made occurrence single a for resulted liability the if persons indemnified plemulti to $300,000 at and person indemnified single a to $100,000 at capped is indemnification for

 .privilege or right a of deprivation or ,death ,injury personal of cases to limited is damages of Payment

 covers this that presumed be may it ,contrary the to provisions statutory of absence the In .46renceoccur single a from arising property to damage for $10,000 to up damages pay also will state The

 prevents nothing that noted be must It .courts federal and state in litigation from resulting damages

 insurance other no is there if ,pocket own her or his of out difference the pay to have will officer vidualindi The .provides law state what to limited is obligation s’state the but ,)decision court the in scribedpro unless (law by specified amounts above the beyond damages monetary paying from state the

.47insurance-self authorized statutorily of plan or contract

Kansas n .B

 Parole .complicated somewhat is Kansas in parole and probation of structure the of discussion A

 Kansas the by provided be generally would defense Legal .49Act Claims Tort Kansas the under eddefend be to eligible are officers parole ,law state under ,Thus .48Division Services Field and munityCom’ Corrections of Department Kansas the by employed officers state be to considered are officers

 probation Kansas the in issues structural the in complication Another .Corrections of Department

 at government state the of branch judicial within Services Court of role the is systems parole and

 the from objectives broad and discretion wide have officers services Court .level court district the

 adult misdemeanant and felony of supervision to reports investigation presentence of preparation

 absolute by shielded be could officers services court that possible is It .50probationers juvenile and

 yet ,agents judicial as judiciary the of behest the at functions out carrying are they because immunity

.51matter this in guidance little gives law case Kansas
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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48

 the delineate clearly not does statute Kansas the ,representation legal for eligible statutorily Although

/county specific the ,office s’general attorney Kansas the either by provided be would officers vicesser court or ,parole ,probation for defense a which under ,cases tort state in especially ,conditions

 scope the within acting employee an or state the against claims ,contract insurance an is there If .52erinsur an for counsel or ,bar private the from counsel ,works officer services court the which in district

 the of approval the to subject ,general attorney the by settled or compromised be can employment of

.53session in is it if ,itself legislature the by or ,legislature the by delegated as council finance state

 services court the and branch executive the in officers parole and probation the between chasm The

 apply statutes Kansas the of which determining in challenge a presents branch judicial the in officers

 .applicable be may they circumstances what under and whom to

 employee state any for representation provide will office s’general attorney Kansas the ,large and By

 either In .54claims rights civil involving case a in court federal a in or case claims tort state a in sued

 receipt of days 15 within defense legal request must employee the that requires statute the ,instance

 Refusal .55office s’general attorney the with request the filing by subpoena a or process of service of

 omission or act the) 1 (:conditions following the of one any under occur may defense a provide to

 actual of because act to failed or acted employee the) 2; (employment of scope the within not was

 made not was request the) 4 (or; employee the and entity governmental the between interest of flictcon a create would entity governmental the by action the of defense the) 3; (malice actual or fraud

.56(e(75-6108 § Annotated Statute Kansas with accordance in

 of Division’ Corrections of Department the of auspices the under is Section Corrections munityCom the ,Kansas In .complicated more bit a is officers corrections community for defense Legal

 corrections community the ,counterparts officer parole their Unlike .57Services Field and Community

 between agreements interlocal or counties single by either established are services and structure

.58counties of consortium or county a of employees officers probation making thus ,counties multiple

 Corrections of Department Kansas the from grants by provided is programs such for funding While

 of employees be to considered generally are officers ,Authority Justice Juvenile Kansas the or/and

 generally would representation legal ,Thus .59programs the established who counties or county the

 as county the by carried insurance liability through or involved entities county the by provided be

 .law Kansas by permitted

 scope the within acting was employee the as long as judgment final of order an to prior accrued estinter for or ,damages exemplary or punitive for liability permit not does statute Kansas The .60cidentac or occurrence single a to related claims any for $500,000 of cap sets Act Claims Tort Kansas The

 a of judgment final or ,settlement ,compromise by assessed damages of Payment .61employment of

 s’treasury state the a from general attorney the by rendered is ,action an defend to costs and ,court

.62laws States United under action rights civil or action claims tort state a in whether ,fund claim tort

 insurance The .63actions right civil any or claims tort state for association an or company a from anceinsur purchase to entities cooperative interlocal and entities government permits statutorily Kansas

.64damages on cap statutory $500,000.00 the exceed to allowed is contract

 arrangement particular the ascertain officer probation the that important is it so ,another to risdictionju Kansas one from vary arrangements indemnification and different is circumstances of set Each

 Kansas ,Incidentally .agreement cooperative interlocal or jurisdiction local her or his to applies that

 be may employee an that case rights civil a in trial a at evidence of introduction the prohibits law

.65admitted is evidence this if declared be shall mistrial a and government the by indemnified

 caused proximately damages or injury for Kansas in permissible is officers state for Indemnification

 provided employment her or his of scope the within acting employee the of omission or act an by

 be not will employee The .66malice or fraud actual without and faith good in acted employee the that

 imperative statutory a is It .67insurance of policy or contract applicable an through paid are that mentssettle or ,judgments ,costs any for or ,damages exemplary or punitive any for ,however ,indemnified
Indemnification and ,Fees’ Attorneys ,Representation Legal

4 Chapter

49

 not because ,them against claims the of defense the in faith good in cooperate employees the that

.indemnification preclude can so doing

UR L B L L F R .V

 becomes officers parole and probation for insurance liability professional ,sued are they if ficationindemni or representation legal obtain to able be not might states many in employees public Since

 pay practitioners where law and medicine like professions profile-high in necessity a is It .attractive

 probation for insurance this purchased had) percent 30 (states of minority a ,publication this of tionedi first the for survey the in ,available are figures recent no Although .pocket-of-out premiums their

 immunity the for standards the on depend to likely is insurance of purchase The .officers parole and

 the authorizing legally statutes on depend also may It .jurisdiction or state particular a in doctrine

 policies insurance purchase to authorization as ,insurance purchase to agency or unit government

 .premium the pays who of issue the always is there ,Ultimately .action such taking to prior exist must

.funds public with premium insurance professional a of payment the prohibit may states Some

 lawsuits of filing the encourage might it fear for rejected sometimes is employees public for Insurance

 awarded damages of amount the that assumed be also may It .servants public against citizens by

 insurance an by borne be would costs the that aware becomes jury the or judge a if increase could

 many In .entity other or agency governmental or employee individual an by than rather company

 at mentioned be cannot indemnification governmental or ownership insurance ,however ,jurisdictions

 would public the ,available is coverage insurance if that argued be could It .hearing a during or trial a

 their of scope the in faith good in performed acts for diminished were liability personal about cernscon their if duties their fulfill to inclined more be would employees public that in ,served better be

 .employment and authority

 jurisdictions in desirable be to appears insurance liability ,results survey the of scope the Within

 ,policies Insurance .nonexistent or uncertain is indemnification or representation legal state where

 insurance that so policies and statutes of modification the for initiatives legislative influence to temptat can agencies ,insurance liability provide or permit not do that jurisdictions In .faith good of tiondemonstra a require may and employment of scope the within performed acts only cover ,however

.funds public with obtained be can employees agency for

RV B R F Z V R . V

 have governments local and state ,sources revenue shrinking and deficits budget of era an In

.69contractor private single a to services probation its of most contract to state the allow statutes giaGeor ,example For .68services probation of provision the for contractors private to turned increasingly

 state have also ,Tennessee and ,Utah ,Florida ,Arkansas ,Alabama ,Missouri as such ,states Other

 states 10 ,s2000 early the In .70services supervision probation of privatization permit that statutes

 with contracted others 10 and assistance supervisions provide to agencies probation private used

 risk-low and misdemeanants of supervision for responsibility primary the had which agencies private

 the require statutorily not does Missouri ,However .insurance liability general carry companies bationpro private that require states ,Generally .71order court under probation serving were who offenders

 without operate which companies those leaves which 72insurance liability carry to companies private

 ,representation legal about questions open leaves and litigation to susceptible insurance adequate

 .employees other and ,agents ,officers probation s’entity the for indemnification and ,fees s’attorney

 redressing or addressing for vehicle proper a be not may statutes claims tort s’state a ,Moreover

.officer probation private a against suit a in claims
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

4 Chapter

50

 a with contracted has state a if ,law state of” color under “acting persons to applies 1983 § Because

 which parties private those to applies 1983 § ,services of provision the for company probation private

 state are officers probation private 1983, § of purposes the For .73sphere s’government the in sivelyexclu and traditionally were that functions perform to government the with contract under jointly act

 Case .74probationers handling for requirements constitutional the uphold to required are and actors

 advised-well are officers and services probation of privatization to regard with developing still is law

 officers Probation .75jurisdictions their within developments law case and statutory of abreast stay to

 ,representation legal of questions the to answers for employers their with consult to need will vicesser provide to jurisdiction local or state a with contracted have which entities private by employed

.indemnification and ,fees s’attorney

R U

 parole and probation of concerns real are indemnification and ,fees s’attorney ,representation Legal

 that shows monograph this of edition first the for survey The .liability civil involving cases in officers

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

 Rights Civil The .well as cases criminal include others whereas ,only cases civil in so do sentationrepre provide that states Most .whatsoever policy formal no to indemnification or representation

 civil a in plaintiff prevailing the to fees award to courts allows 1976 of Act Awards Fees s’Attorney

 standardization no is there and fees these pays who to as policy of paucity a is There .lawsuit rights

 by indemnified or/and represented be to entitled is who to as states; within ,sometimes ,and between

 .considered are municipalities and ,parishes ,counties where compounded is problem The .state the

 and ,filed lawsuits of number the increase it will) 2 (,premium the pays who) 1 (:as such ,remain lemsprob inherent but ,officers parole and probation to protection provides insurance liability Professional

 local and state Each? policy the underwrite to willing or/and available is company insurance an is) 3(

 so officers parole and probation their training and educating for responsibility take must jurisdiction

 that lawsuit a in party a as named are they if properly and promptly act to prepared be will they that

.liability civil to them expose may

 .W (211-12 at 34, § Torts of Law the on Keeton and Prosser citing ,).ed th9 (Dictionary Law s’Black 1.

.(.ed th5 .,ed Keeton Page

.(2010) -2A59:10 § .Stat .J .N See 2.

.(2010) 143-300.4 § .Stat .Gen .C .N See 3.

.(2006) 413 .J.N 186 ,State .v Prado 4.

 prevailing a as qualify not did plaintiff a which in) 2003 .Cir th6 (519 d3F 338 ,Taft .v Toms .,g.e See 5.

 .(settlement court-of-out private a in party

 .(1976) (b(1988 § .C.S.U 42 1976, of Act Awards Fees s’Attorney Rights Civil 6.

.(2009) ,Edition Fifth ,Justice Criminal in Liability Civil ,Ross .L Darrell 7.

 .Id 8.

.Id 9.

.(1991) 432 .S.U 499 ,Erhler .v Kay 10.

.(1980) 5 .S.U 449 ,Rowe .v Hughes 11.
Indemnification and ,Fees’ Attorneys ,Representation Legal

4 Chapter

51

.(1980) 103 .S.U 506 ,Hobby .v Farrar 12.

,Resources Human & Health of Department Virginia West .v Home Care & Board Buckhannon 13.

.(2001) 598 .S.U 532

604. at .Id 14

.(1980) 122 .S.U 448 ,Gagne .v Maher 15.

.Id 16.

 .D.S (1373 .Supp .F 432 ,Estelle .v Guajardo also See .)1983 (424 .S.U 461 ,Eckerhart .v Hensley 17.

 .(1978 .Cir th5 (748 d.2F 580 modified ,)1977 .Tex

.(1978) 678 .S.U 437 ,Finney .v Hutto 18.

.Id 19.

.(1978) 412 .S.U 434 ,EEOC .v .Co Garment Christianberg 20.

.(1980) 1 .S.U 448 ,Thiboutot .v Maine 21.

.(1983) 424 .S.U 461 ,Eckerhart .v Hensley 22.

.(1996 .Cir th11 (1393 d.3F 97 ,Whisenant .v Duckworth 23.

.(1994 .Cir th9 (550 d.3F 42 ,Reno .v Wilcox 24.

.(1991 .Cir th5 (1311 d.2F 941 ,Cain .v Farrar of Estate 25.

 .(1992) 103 .S.U 506 ,Hobby .v Farrar 26.

81. at ,Ross 27.

.Id 28.

.Id 29.

 .Id 30.

.(b(1346 § .C.S.U 28 and 2671-2680 §§ .C.S.U 28 ,)FTCA (Act Claims Tort Federal generally See 31.

2679. .C.S.U 28 ,Act Westfall the as to referred also ,)CAFELRT (1988 of Act Compensation Tort and Reform Liability Employees Federal generally See 32.

.Id 33.

/us.tx.state.tdcj.www://http at) CSCD (Departments Corrections and Supervision Community See 34.

.(CSO (Officer Supervision Community and supervision_community#htm.home-definitions/definitions

 /statestats/features/gov.nicic://http at available ,Texas of State the for Statistics Corrections 35.

.Division%20Parole#htm.home-definitions/definitions/us.tx.state.tdcj.www://http and ,TX=State?

 .htm.what-cjad/cjad/us.tx.state.tdcj.www://http at Division Assistance Justice Criminal See 36.

.htm.what-cjad/cjad/us.tx.state.tdcj.www://http at available Chart Organizational See 37.

 %Parole#htm.home-definitions/definitions/us.tx.state.tdcj.www://http Officer Parole See 38.

.Division20

.(2010) 104.004 and 104.001 §§ .Rem & .Prac .Civ Texas 39.

.(2010) 104.001 §§ .Rem & .Prac .Civ Texas 40.

.(2010) 104.002 § .Rem & .Prac .Civ Texas 41.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

4 Chapter

52

.(2010) (1)(a(104.002 § .Rem & .Prac .Civ Texas 42.

.(2010) 104.005 § .Rem & .Prac .Civ Texas 43.

.(2010) 104.007 § .Rem & .Prac .Civ Texas 44.

.(2010) (1)(a(104.003 § .Rem & .Prac .Civ Texas 45.

.(2010) (2)(a(104.003 § .Rem & .Prac .Civ Texas 46.

.(2010) (2)&(1)(b(104.003 § .Rem & .Prac .Civ Texas 47.

 /statestats/features/gov.nicic://http at available ,Kansas of State the for Statistics Corrections 48.

.KN=State?

.(2009) 75-6115 – 75-6101 §§ .Ann .Stat .Kan ,Act Claim Tort Kansas generally See 49.

 at available and 2010 30, November retrieved page web Court District County Thomas .,g.e See 50.

.htm.CourtServices/us.thomascounty.www://http

 See; matter this in instructive be may jurisdiction another from opinion unpublished recent A 51.

,Kjellsen .v Hansen upon relies Defendant) (“2010 .D.S.D (562883 WL 2010 ,Nelson .v Christianson

 In .immunity absolute to entitled is she that position her for support as ,).2002D.S (548 d.2W.N 638

 absolute to entitled was officer services court a that held Court Supreme Dakota South the case that

 South The .report the preparing and investigation presentence a conducting when immunity judicial

 information accurate and complete required court sentencing a that reasoned Court Supreme Dakota

 harassing to) sic (officers services court a subjecting that and ,sentenced being offender an about

 in discretion her exercising was ,rather but case this in report presentence a preparing not was dantDefen .court sentencing the to information of flow free the promote not would litigation vexatious and

 s’Defendant .probation s’juvenile a of terms the regarding order s’court sentencing the out carrying

 See .immunity absolute warrant to as so nature in prosecutorial nor adjudicatory neither was function

 showing of burden her met not has Defendant The .)warrant s’violator parole a secure to report a ingwrit in immunity absolute to entitled not officer probation)(.1984Cir th8 (370 d.2F 734 ,Pickett .v Ray

 defines Statute Kansas A”; .case this in immunity absolute of application the justifies policy public that

 muddying thus ,Procedure Criminal of Code its in” officers enforcement law “as officers services court

 in officers services court of role cut clear apparent the to compared when further even waters the

 .A.S.K) 2001 (627 .Kan 227 ,Shawnee of rs’Com County of Board .v McCormick See; Dakota South

 public or office of virtue by who person any “...as officer enforcement law a defines) 13(22-2202

 of violation for arrests make to or order public maintain to duty a with law by vested is employment

 ,directors and officers parole ,officers services court includes and ... Kansas of state the of laws the

 their of scope the within acting while ... institutions correctional of keepers and personnel security

.(added ellipses and quotations initial” (authority

.(2009) (b)& (a(75-6108 § .Ann .Stat .Kan 52.

.(2009) (a (75-6106 § .Ann .Stat .Kan 53.

75.6116. § .Ann .Stat .Kan 54.

.(2009) (e(75-6108 § .Ann .Stat .Kan 55.

.(2009) (c(75-6108 § .Ann .Stat Kan 56.

 ://http at available); 2010 May (48 at Report Annual 2010 :Corrections of Department Kansas 57.

 %May%20Released(%20Report%20Annual%20KDOC/2010%20publications /gov.ks.doc.www

.pdf.)202010

48. at .Id 58.
Indemnification and ,Fees’ Attorneys ,Representation Legal

4 Chapter

53

52-55. at .Id 59.

.(2009) (a(75-1605 § .Ann .Stat .Kan 60.

.(2009) (c(75-6015 § .Ann .Stat .Kan 61.

.(2009) 75-6117 § .Ann .Stat .Kan 62.

.(2009) (a (75-6111 § .Ann .Stat .Kan 63.

.Id 64.

.(d(75-6116 § .Ann .Stat .Kan 65.

.(2009) 75-6109 § Ann .Stat .Kan 66.

.Id 67.

 A :Services Probation of Privatization the in Standards ,Alarid .F Leanne and Schloss .S Christine 68.

10.1177/0734016807304949. :DOI .)2007) (3(32 Review Justice Criminal ,Analysis Statutory

,direction new A :Georgia in Probation Private ,Sparrow .O.K.H ,also See .htm.about/com.gonlineppa.www://http from 2010 30, November retrieved ,Georgia of Association Probation Private 69.

.(2001) Courts the of Office Administrative :GA ,Atlanta

234. at ,Alarid and Schloss 70.

 .No Report Policy NCPA (,parole and probation Privatizing ,Reynolds .O .M citing with 233 at .Id 71.

41. note supra Sparrow and ,Analysis Policy for Center National :TX ,Dallas 233,

240. at .Id ,Alarid and Schloss 72.

 Secondary .Tenn .v .Acad Brentwood also See); 2002 .Circ Ninth (500 .d3F 276 ,Katz .v Lee See 73.

.(2001) 288 .S.U 531 .,Assoc Athletic .Sch

 Section Under Liability Entity Private Conceptualizing in Analogy of Failure The ,Frankel Richard 74.

.(2010) 967 .Rev .L UMKC 78 1983,

.(2004) 35 .Rev .L Cardozo 26 ,Entities Private of Liabilities Rights Civil ,Kritchevsky Barbara 75.

5 CHAPTER

 PREPAROLE AND PRESENTENCE

REPORTS AND INVESTIGATIONS

 INTRODUCTION

 ISSUES) PSIR (REPORT INVESTIGATION PRESENTENCE PROBATION .I

PSIR a of Contents .A

Rules Federal 1. 

PSIR the of Overview General .B

 Information Victim 1. 

 Hearsay 2. 

 Examination-Cross and Confrontation 3. 

 Record Criminal 4. 

 Evidence Suppressed 5. 

Disclosure .C

General in Public the to Disclosure 1. 

Counsel Defense and Defendant the to Disclosure 2. 

Victims to Disclosure 3. 

 Agencies Government Other to Disclosure 4. 

Media the to Disclosure 5. 

 Parties Third Other to Disclosure 6. 

 Presentence Preparing for Liability Civil from Immune Generally Officers Probation .D

 Reports Investigation 

 ISSUES) PPIR (REPORT AND INVESTIGATION PREPAROLE .II

 Access File Prisoner Federal .A

 Access File Prisoner State .B

 Applies Process Due Where—Case Greenholtz The 1. 

 Rejected Is Standard Greenholtz The—Conner .v Sandin 2. 

?Files to Access Include Process Due Does 3. 

 Access Victim .C

 Access Party Third Other .D

 HEARING PAROLE A OF NOTICE TO RIGHT.III

SUMMARY

NOTES

55

Reports and Investigations Preparole and Presentence

5 CHAPTER

57

INTRODUCTION

 the in functions key several for important are reports and investigations preparole and Presentence

 in judges assist) PSIRs (reports and investigations presentence the ,First .system justice criminal

 usually are Probationers .serve will offender an that sentence of length and type the determining

 PSIRs .government of branch judicial the under offices probation through courts the by supervised

 by used be also may PSIRs .parole or probation of conditions and terms the determine to used are

 and investigations Preparole .restitution victim and fines for amounts monetary the assess to judges

 state a by supervised generally are Parolees .release supervised on placed be or ,incarcerated mainre should offender an whether deciding in commissions and boards parole assist) PPIRs (reports

 makers decision by used are PPIRs .government of branch executive the under commission or board

 day ,supervision community .,g.e (release parole s’inmate an of conditions and terms the fashion to

 .(monitoring electronic ,house halfway ,center reporting

 history criminal about information contain PSIRs that is function justice criminal essential Another

 Prisons of Bureau federal the and facilities correctional state by used are that assessments risk and

 should inmate an where decide to ,level security s’inmate an determine to purposes classification for

 in agencies assist can PSIR the in Information .assignments program assess to and ,housed be

 .facility maximum-super or ,maximum ,medium ,minimum a to offender an assigning

 Victims .victims about making-decision in use their is PPIR the and PSIR the of function third A

 right the .,g.e (report s’offender an in contained information the by conditioned rights certain have

 be to right the or perpetrator a against order restraining permanent or temporary ordered-court a to

 assess personnel services’ victims help can reports these ,Furthermore .)hearing parole a at present

.services for needs and to entitlement’ victims crime the

 ,confinement ,probation ,conviction of because rights constitutional their of all lose not do Offenders

 are rights constitutional basic some ,words other In .rights diminished have do they but; parole or

 of type the ,crime the of severity the on depending curtailed are rights other whereas ,retained

 the affect may processes preparole and Presentencing .release of conditions and ,received sentence

 understand to officers parole and probation for imperative is it therefore ,rights s’offender an of scope

 of use and ,substance ,procedure the ,states most In .rights s’inmate or s’offender an of limits the

 state by set often is PPIRs of operation The .rules procedural and law state by governed are PSIRs

.reports and investigations preparole and presentence govern that rules and laws the of sisanaly any in issues legal complicated present frameworks divergent These .policy agency federal or

 this ,policies agency and; rules and statutes federal and state; rights constitutional on Focusing

 and Federal .PPIR and PSIR the with involved issues legal central the of some discusses chapter

 ,memoranda ,publications ,manuals’ agencies their consult should officers parole and probation state

 that guidelines and ,rules ,laws the about information specific more for documents official other and

 .chapter this in discussed is that topic any to regard with actions their govern

 INVESTIGATION PRESENTENCE PROBATION .I

ISSUES) PSIR (REPORT

 a ,grounds process due on decided are cases federal Most .PSIRs of use state determining in sionsdeci court federal follow generally states the that shows decisions court state of examination An

 afford which states are There .decisions federal follow to states the forcing thus ,issue constitutional

 basically courts state but ,courts federal the by required those than protections greater defendants

 should law case federal existing of examination an ,vary may jurisdiction state or federal a in duresproce and rules local Although .issues legal PSIR various to related decisions court federal on rely

 .follow jurisdictions state and federal most that patterns and trends the identify to serve
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

58

PSIR a of Contents .A

 information include to PSIRs require Procedure Criminal of Rules Federal the ,level federal the At

.1treatment and programming correctional determining or tencesen imposing in helpful be may that behavior s’defendant the affecting circumstances any and ,tioncondi financial ,record criminal prior any including; characteristics and history s’defendant the about

 help to is PSIR the of purpose The 

 about information extensive providing by sentence appropriate most the impose judge sentencing the

 sentencing that is second the and ,sentences individualized by promoted is rehabilitation that is ceptcon first The .corrections of field the in concepts contemporary two supports report The .officer tionproba the by recommendation informed an ,requested specially or customarily if ,and defendant the

.2reduced be should offenses similar or same the for disparity

 or guilt deciding of stage the Because 

 reasonable it held long has Court Supreme States United the ,sentencing to prior occurs innocence

 will she or he information of types and sources what to as discretion wide exercise to judge a allow to

.3sentence lawful and appropriate an determine to on rely

 Supreme .S.U recent relatively a ,However 

4Washington .v Blakely in ruling Court

 factors sentencing between distinguish must judge a that holds 

5elements and

 or statutes sentencing from departures because sentence passing when offense an of 

 .jury a for fact of questions are guidelines

.6reports the of use and ueval perceived the for results mixed indicate PSIRs of utility the examined have that studies Empirical

 but ,officers parole by PSIRs of use to attention more given have Scholars 

.7understudied been has attorneys defense to reports the of significance the

 of importance the Given 

 counsel defense providing require fairness fundamental and process due of dictates the ,PSIR the

 the at involved interest liberty distinct a is there that maintain may Attorneys .report the to access

 judge a ,However .passed been has sentence after exist always not does that stage presentencing

 of sources and types the to as unlimited largely and scope in broad is that inquiry an conduct may

.8sentence passing in consider may she or he that information

 Rules Federal 1.

 .PSIRs federal of preparation the in used exclusions and requirements the incorporate states Most

 Rule Federal the of 32 Rule .section this in explained be will elements excluded and required These

 federal in judgment and sentencing for requirements the forth sets) 32 Rule (Procedure Criminal of

 Supreme .S.U the After .PSIR a of contents required the are 32 Rule of provisions the Among .cases

9Booker .v States United in ruled Court

 and advisory were 10Guidelines Sentencing States United that 

11“.Guidelines Sentencing Advisory “the reflect to altered was 32 Rule of language the ,mandatory not

:following the include must PSIR federal the 32 Rule Under

 Sentencing States United the of statements policy and guidelines applicable all of Identity■ 

.Commission

.category history criminal and level offense s’defendant the of Calculation■ 

.available sentencing of kind and range sentencing resulting the of Statement■ 

 appropriate the or ,sentence of kind appropriate the either to relevant factor any of Identification■ 

.range sentencing applicable the within sentence

.12range sentencing applicable the from departing for basis any of Identification■ 

 state and federal in included been traditionally has that information additional the lists) 2)(d(32 Rule

:include must items these ,PSIRs federal For .PSIRs

 affecting circumstances ,history criminal prior including ,characteristics and history s’defendant A■ 

.programs menttreat correctional in or sentence imposing in judge the assist may that behavior s’defendant the
Reports and Investigations Preparole and Presentence

5 CHAPTER

59

.victim any on impact medical and ,psychological ,social ,financial assesses that Information■ 

 the to available resources and programs nonprison of extent and nature the ,appropriate When■ 

.defendant

 for provides law the if ,restitution ordered-court appropriate determine to sufficient Information■ 

.victims or victim the to restitution

.13(b(3552 § .C.S.U 18 under court the by ordered study any of recommendations and Results■ 

 the that information other any and ,14)a(3553 § .C.S.U 18 under factors the to relevant Information■ 

.requires court

 provision other any and 32.2 Rule under forfeiture seeks government the whether of Specification■ 

 .law of

 must rule the under PSIRs Federal .)3)(d(32 Rule under exclusions of aware be to important also is It

include not

.program rehabilitation a disrupt seriously might that diagnoses Any■ 

.confidentiality of promise a for exchange in obtained information of sources Any■ 

 or defendant the to harm other or physical in result might ,disclosed if ,that information other Any■ 

.others

PSIR the of Overview General .B

 state 32, Rule Federal in out set exclusions and content the on PSIR their base states most Although

 the to regard with rules local and state the of aware be must officer probation The .PSIR the from edexclud or in contained be to information of variety a permit or require may courts state and statutes

 was defendant a which in cases or ,dismissals case ,example For .vary jurisdictions because PSIR

 of inclusion for determination A .PSIR a in inclusion for appropriate be not may or may ,convicted not

 or jurisdiction a of rules and statutes the on depends contacts system justice criminal of types these

 offense the to relevant is information the If .charged is defendant a which with offense of type the on

 in important so ,doubt reasonable a beyond of proof of standard the and evidence of Rules .missibleper likely is PSIR the in inclusion then ,conducted being is investigation presentence the which for

 the At .15sentencing for requirements process due satisfy to PSIR a in included information for dardstan basic the is standard preponderance the ,fact In .PSIRs to apply strictly not do ,trials criminal

 information the that provided ,PSIR the in contained evidence relevant any consider may court ingsentenc the that held Appeals of Court Circuit Fifth federal the ,Ramirez .v .S.U In 16’”.accuracy ableprob its support to reliability of indicia sufficient ‘a have should “...PSIR the in information ,least very

.17trial a at inadmissible be would evidence the if even” ,reliability of indicia sufficient “has on relied

 no was there that found Appeals of Court Federal Circuit Second The .18law case and ,rules ,utesstat by governed is that interview routine a is it—interrogation an not is interview presentence The

 the to letter a gave then and wrote voluntarily defendant a where Amendment Fifth the of violation

 to warning Miranda the provide to obligation no is There .19interview an during Officer Probation .S.U

 Fifth s’defendant the because PSIR a preparing of purposes the for interview an to prior defendant a

 be to shown be can interview the unless ,triggered not is incrimination-self against right Amendment

.20coercive

 initially should officer probation The .PSIR the in contained information the to object may defendant A

 or defendant the with either ,report the of contents the concerning disputes any resolve to attempt

 to motion a file may defendant the ,issues the resolve to unable is officer the If .attorney defense the

 that rules court the If .motion the deny or grant and hearing a conduct will court sentencing the allygener ,filed is motion a If .PSIR the in inaccuracies any correct to motion a or contents the to object
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

60

 amend will PSIR the prepared who officer probation the ,excluded or amended be must content the

 the ,court sentencing the to report amended the present and content objectionable the remove or

 .attorney defense the and ,defendant the ,attorney s’government

 court sentencing the that found Court Supreme .S.U the ,)1948 (736 .S.U 334 ,Burke .v Townsend In

 a is there that illustrates case This” .false materially and extensively “was that information on relied

 considered not is information disputed the that assure to disputes factual resolve to judges directs lyexpress) B)(3)(i(32 Rule .sentencing at considered be can that information the on limit constitutional

 the objectively assess to officer probation the of responsibility the is It .PSIR a in contained mationinfor of accuracy the to relevant especially are Rule the and Townsend .sentence a assessing when

 any or/and evidence hearsay ,jurisdictions many In .report the in contained information the of veracity

 stipulate usually judges but ,21PSIR the in included be may police the by obtained illegally evidence

 the specify statutorily states Some .report the from excluded want they that information of kind the

 these leave states other whereas ,PSIR the from excluded or in included be may that information

 .judge the to solely decisions

 Information Victim 1.

 ,Columbia of District the ,states 50 all 2004,22 of Act Rights’ Victims Crime the of passage the After

 Most .23sentencing at statement impact victim of form some to consented have territories .S.U and

 written the include must PSIRs Federal .PSIR a in statement written a of inclusion permit states

 may statements impact victim ,Crime of Victims for Center National the to According .statement

 any of identification an) b; (victim the by suffered loss economic any of itemization an) a (:include

 relationships familial or welfare personal s’victim the in change any of description a) c; (damage or ryinju of permanence and seriousness the including ,victim the to damage emotional or injury physical

 services psychological or medical for request any of identification an) d; (offense the of result a as

 any) f (and; restitution ordered-court for need a) e; (offense the of result a as victim the by initiated

 some In .24victim the on offense the of effect the to related and court the by required information other

 about views her or his of description s’victim a include also may statement impact victim the states

.25sentence appropriate an in belief s’victim the and ,offender the or/and offense the

 Hearsay 2.

:as) 2009 .,ed th9 (Dictionary Law s’Black in defined is” Hearsay“

 what but ,personally knows she or he what not relates who witness a by given is that testimony

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 a ,law federal In ....evidence of rules the under inadmissible generally is testimony Such .witness

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 matter the of truth the prove to evidence in offered ,hearing or trial the at testifying while declarant

.asserted

 facts the of truth the because evidence of rules the under trials in admissible normally not is Hearsay

 ,however ,clear are cases Decided .witness the of examination-cross by tested be cannot asserted

 the to apply not do hearsay concerning Evidence of Rules Federal the because PSIR a in mittedper be may Hearsay .26PSIR a in objectionable constitutionally itself of and in not is hearsay that

 .report the of preparation or investigation

 is it ,hence; sentence appropriate an determining in judge the aid to is report the of purpose The

 ,addition In 27”.trial at applicable properly evidence of rules restrictive the to adherence rigid of mentrequire a by information pertinent obtain to opportunity an denied be not “judge the that important

 compiled not usually is report the As .28fact established to content their in restricted not are PSIRs

 to as discretion proper and broad both exercise to judge the to up is it; law the in trained persons by

 unlimited court the give not does This .court the assist to used information of types and sources the
Reports and Investigations Preparole and Presentence

5 CHAPTER

61

 to claimed is that information hearsay rebut to opportunity an afforded is defendant The .discretion

 to motion a filing by or verbally either PSIR a of contents the to objecting by inaccurate or false be

.inaccuracies correct to motion a or report the in information the to object

 Examination-Cross and Confrontation 3.

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 in vary Jurisdictions .information the provided who experts the of or report the prepared who officer

 of Court Federal the in Rulings .information unfavorable other or inculpatory of sources are who eswitness adversary examine-cross and confront to right Amendment Sixth s’defendant a restricting

 acting is officer the because ,court the and officers probation between communications parte ex ineexam-cross to right no have defendants that held have Circuits Seventh and Fourth the for Appeals

 held has Circuit Ninth the for Appeals of Court Federal the Similarly 29”.agent neutral s’court the “as

 officer the when conferences pretrial at allowed not is officers probation of examination-cross that

 advocacy of area the into straying without recommendation her or his for basis the explains “merely

 30“.argument or

 Record Criminal 4.

 s’defendant a of history a contains it because simply unjust manifestly considered not is PSIR A

 considered usually is activity criminal prior to relating Information .31charges or/and arrests prior

 enforcement law by disclosure mandatory to subject is ,therefore ,and court sentencing the to critical

 court sentencing a that held court circuit federal a ,32Chaikin .v .S.U In .PSIR the in use for agencies

 offenses beyond background and history criminal s’defendant a about evidence the consider may

 have that counts or charges of evidence includes also This .convicted been has she or he which for

 :states) 2010 (3661 § .C.S.U 18 ,sentencing of purposes the For .government the by dismissed been

 conduct and ,character ,background the concerning information the on placed be shall limitation No“

 for consider and receive may States United the of court a which offense an of convicted person a of

 “.sentence appropriate an imposing of purpose the

 ?sentence a enhance to used be offenses these Can? PSIR a in used be offenses juvenile Can

 federal the at clear not is It .PSIRs in included be to records juvenile allow jurisdictions state Some

 there and ,offense current a for sentence a enhance to used be can offenses juvenile whether level

 and laws The .33unanswered question the leaves which courts circuit federal the in conflict some is

 must ,agencies specific of guidelines and rules the and ,jurisdiction federal and state each of rules

.records juvenile excluding or including about decisions making to prior consulted be

 Evidence Suppressed 5.

 disfavor some showed Rehnquist .H William Justice Chief former under Court Supreme .S.U The

 .Amendment Fourth the from derived is doctrine developed-court This .rule exclusionary the toward

 or ,Fifth ,Fourth s’defendant the of violation in obtained information prohibits rule exclusionary The

 The .guilt s’defendant the of evidence direct as trial criminal a in used be to rights Amendment Sixth

 or exclusion the extend to efforts resisted have Court Roberts recent more the and Court Rehnquist

 that argued is It .itself trial the than other proceedings to evidence obtained illegally of suppression

 In .misconduct police deter to need the by justified is evidence obtained illegally suppressing rule the

 ,warranted not is remedy suppression the of extension the that held have courts lower where cases

 obtained be cannot misconduct official of deterrence additional that said has Court Supreme the

 .interest public the to harm undue without

 has guilt once information suppressed of use the permitted have Appeals of Courts Federal The

 from court sentencing a prohibit routinely not does rule exclusionary the because determined been
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

62

 excluded were that drugs and weapons of evidence obtained illegally ,cases court circuit federal eralsev In .34trial at inadmissible is evidence such though even evidence obtained illegally considering

 courts circuit federal some ,However .35judges sentencing by considered be to permitted was trial at

 specifically used being is evidence the if—evidence excluded of use the on exception an placed have

.36excluded be must it then ,sentence severe more a establish to attempt to

 to regard with jurisdictions their in rules and laws current the ascertain should officers Probation

 assess also should They .offense current the to relevant evidence suppressed or excluded including

 .them to available is tioninforma of type this if ,offenses prior from evidence excluded including for guidelines and rules the

 Disclosure .C

 General in Public the to Disclosure 1.

 submit to officer probation .S.U a permit not does Procedure Criminal of Rules Federal the of 32 Rule

 has defendant the until entity or person other any to contents the disclose to or court the to PSIR a

 exclusions 32 Rule The .37adjudicated been has guilt or ,contendere nolo or guilty of plea a entered

 officer the if apply not do Rule the of sections These .disclosure from prevented also are PSIR the for

 later no attorney government the to and counsel s’defendant the or defendant the to PSIR the closedis to officer the require does Rule The .38disclose to consent written s’defendant the obtained has

.40period suredisclo minimum required this waive ,however ,may defendant A .39sentencing to prior days 35 than

 release for standard federal the sets Procedure Criminal of Rules Federal the of) e(32 Rule Although

 the after confidential remain PSIRs that requires rule or statute No” .parties third “various to closuredis to as silent remains it ,prosecutors s’government the and ,attorneys their ,defendants to PSIRs of

 in information disclose may court a that is guideline general The .41occurred has hearing sentencing

 court the by considered was information the if ,exclusions s’Rule the of exception the with ,PSIR the

.sentence a determining in

 the ,Commission Parole the ,courts the than other entities or persons as defined are parties Third

 has levels federal and state the at both trend general The .officers probation and ,Prisons of Bureau

 several recently More .disclosure party third to subject not and confidential are PSIRs that been

 to disclosure of possibility the addressed have ,statutes’ states few a and Appeals of Courts Federal

 .court sentencing the of realm the outside persons

.42case Appeals of Court Federal Circuit First a in found is Rule the of application the of variation A

 not information any disavow and record the for identify both may judge a that determined court The

 .sentencing for upon relied were that report the of portions those disclose may or ,upon relied

 in case disclosure party-third a decided Circuit Fifth the for Appeals of Court Federal the 1995, In

 one to guilty pleaded ,Louisiana in judge court district state a ,Huckaby .43Huckaby .v States United

 presentence the During 1987. year the for return tax income an file to failing of count misdemeanor

 the for him by owed taxes total the estimated Service Revenue Internal The .years 12 nearly for turnsre tax income federal any filed not had Huckaby that concluded office probation the ,investigation

 publicized highly was case this of prosecution The $146,311. approximately were 1992 to 1981 years

 ,friends his ,Huckaby ,court trial the to According .Louisiana ,Shreveport of hometown s’judge the in

 singled being was Huckaby that contended leaders community and officials Shreveport some and

 .community the within power of position a to risen had and black was he because prosecution for out

 PSIR the filing of step unusual the took ,contentions these at dismayed apparently ,judge trial The

 fine a ,imprisonment of term month12- a to Huckaby sentenced then judge The .record public the into

 of disclosure the upheld Circuit Fifth appeal On .release supervised of term year1- a and $5,000, of
Reports and Investigations Preparole and Presentence

5 Chapter

63

 objections the” ,Characteristics Offender “titled PSIR the of portion the that required but ,report the

 .record the from removed be objection the to responses s’officer probation the and ,defendant the of

 need the with coupled ,tension racial relieving of necessity compelling the that held court circuit The

 .record public the in PSIR the of disclosure the justified ,bilityculpa s’defendant the of public the persuade would that PSIR the in found facts of revelation the for

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

 to report the of disclosure require jurisdictions Most .rights constitutional of violative as PSIR the of

 .rule court or statute state a under counsel defense and ,defendant the ,attorney s’government the

 limiting as such ,access to restrictions various have jurisdictions these as here suggested is Caution

 information; statements victim; opinions diagnostic; recommendation sentencing the of disclosure the

 a harm may ,disclosed if ,that information any or/and; confidentiality of promise the under obtained

.court sentencing the to left often most is matters these in Discretion .party third

Counsel Defense and Defendant the to Disclosure 2.

 provision Amendment Sixth The .44attend to entitled is counsel defense ,PSIR a in included be to tioninforma obtaining of purposes the for defendant the with interview s’officer probation .S.U a During

 The .45interview the during present be to opportunity reasonable a and notice afforded be must neyattor s’defendant the but ,interviews investigation presentence to attach not does counsel to right of

 ,Therefore .46interviews PSIR to apply not does incrimination-self against provision Amendment Fifth

 an given and notified been has counsel defense when liability civil face not does officer probation a

.47interview an attend to declines but ,present be to opportunity

 documentary supporting the instances some in and ,PSIR the that provide may laws state Some

 sentencing the ,However .48PSIR the in use for developed information to right a have not does dantdefen The .directly defendant the to than rather ,attorney s’defendant the to disclosed be ,information

 the determine to facts those on rely will court the if 32 Rule in exceptions disclosure the under cludedex information any ,chambers in review a for summarize or ,summary written a provide must court

 instructions with documents supporting and PSIR the to access given be may Counsel .49sentence

 reasons for information excludes that access Partial .50defendant the to contents the disclose to not

.51disclosure insufficient is above listed those than other

 There .52PSIR s’codefendant a to access have to 32 Rule under right a have not does defendant The

 part that ,material exculpatory contains PSIR’ witness coconspirator a If .disclosure in distinction a is

 not is counsel defense to disclosure ,testimony s’coconspirator a impeach to only used be to is tioninforma PSIR the if ,hand other the On .53counsel s’defendant to disclosed be must report the of

.54trial jury or bench a of outcome the affecting of likelihood reasonable a is there unless ,required

Victims to Disclosure 3.

 The .)CVRA (Act Rights’ Victims Crime federal the under rights of number a have victims Crime

 ‘victims crime own their have states Many .55CVRA federal the on based is section this in discussion

 must officers parole and Probation .CVRA Federal the of provisions the to similar are which acts right

 .rights’ victims crime to pertain that rules and statutes s’state their of knowledge working have

 at heard reasonably “...be to right the are ,CVRA federal the in enumerated rights’ victims the Among

 harmed proximately and directly person a means “victim crime of definition s’CVRA The 56”.ceedingpro parole any or ,sentencing ,plea ,release involving court district the in proceeding public any

 The 57”.Columbia of District the in offense an or offense Federal a of commission the of result a as

 federal any to applies it therefore ,infractions or misdemeanors exclude specifically not does CVRA

 respect with and fairness with treated be to right the “has victim the that states also act The .58offense

...” agencies and departments States United other and employees and officers its including ,sonnelper Justice of Department States United any directs statute The .59privacy and dignity s’victim the for
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

64

 see to efforts best their make “to ,...”crime of prosecution or ,investigation ,detection the in engaged

60“.act the of) a (subsection in described rights the ,accorded and ,of notified are victims crime that

 district the directs CVRA The .61independently CVRA the under rights their assert also can Victims

 ,therefore; proceeding criminal federal a of stages many affect can CVRA the to amendments quentSubse .62act the under them to given” rights the afforded is victim crime the that ensure “...to courts

 CVRA s’jurisdiction her or his of version current the consult to officer probation a upon incumbent is it

.63issue in is rights’ victims of question a whenever

:states CVRA federal the of) 6)(d (Section

 ,create to or damages for action of cause a authorize to construed be shall chapter this in Nothing

 which of breach the for person other or victim any to obligation or duty any imply to or ,enlarge to

.damages in liable held be could employees or officers its of any or States United the

 Probation States United .CVRA the by created is damages for action of cause no that is upshot The

 This .rights s’victim a of violation for action civil a in damages for sued be cannot Officers Parole and

 an against suit s’victim in relief declaratory or injunctive grant not could court a that mean not does

 10607 § .C.S.U 42 under brought be can officers parole and probation against claims Potential .officer

 impact victim a prepare to right a has she or he that victim the notify to fails officer probation a if ,pleexam For .64victims crime to services of types certain provide to officials government requires which

 for respect with and fairly victim the treat not does officer an if or PSIR the in inclusion for statement

 .requirements its under action of cause a permits statute this ,privacy and dignity s’victim the

 a assert can victims ,)3)(d(3771 § to pursuant CVRA Federal the of provision enforcement the Under

 district the in mandamus of writ or relief for motion a filing by CVRA the under rights their of violation

 to court a by issued writ a “is mandamus of writ A .prosecuted being is defendant the where court

 [usually [,body or officer governmental a or court lower a by act particular a of performance compel

 the by sought relief the permit to fails court district the If 65”.act to failure or action prior a correct to

 .court district the over jurisdiction has which Appeals of Court Federal a petition can she or he ,victim

 ,liability civil for officer parole or probation the against damages include not does remedy of type This

.CVRA the by permitted not is damages of award an because

 the involving none and ,CVRA the to regard with decisions few rendered has Court Supreme The

 Appeals of Courts .S.U some ,However .)Reports Preparole for or (PSIRs of disclosure and CVRA

 ,unpublished or published either ,cases These .matter this on ruled have Courts District Federal and

 aware be must officers parole and probation so ,flux in constantly is law Case .below discussed are

 in) unpublished (instructive or) published (binding and precedential are that decisions case current of

.jurisdictions their

 writ s’victim a deny to decision s’court district a affirmed Appeals of Court Federal Circuit Ninth The

 right general a supported history legislative its nor CVRA the neither that found and mandamus of

 victim the that court district the with agreed Court Circuit The .66PSIR a to access have to victim a for

 under confidentiality its outweighed PSIR the requesting for reasons his that demonstrate to failed

 .requests such to applied traditionally is that test” justice of ends “the

 “justice of ends the meet to need compelling “the on relied Circuit Ninth the ,case earlier an In

 to and victim deceased a of estate the to PSIR a of disclosure party third permitted it when standard

 former a of murder the from stemmed Schlette .v States United .67town California in newspaper the

 the before years 30 some arson for prosecuted successfully had he man a by attorney district county

 parties third to released be should PSIRs that suggest not does it that stated court the Although .licepo the by capture avoid to suicide committed murderer the ,killing the after Soon .occurred murder

 needs compelling disclosure party third the met case the of nature unique the that held it ,routinely

 s’estate the upon based was man murdered the of estate the to PSIR the of Disclosure .standard

 needed estate the and ,source other any from acquired be not could information this that arguments
Reports and Investigations Preparole and Presentence

5 CHAPTER

65

 failure the on based negligence for action of cause a had it whether determine to order in disclosure

 court The .68murderer the by him to posed threat the of deceased the warn to office probation the of

 the informing by interest public the serve would disclosure that assertion s’newspaper the validated

 disclosure in interest The .standard disclosure the met thus and ,process sentencing the about public

 inspect to right law common the in rooted be to court the by found was newspaper the by asserted

.69documents and records judicial

 s’victim a denied court district a ,70Brock re In of case Circuit Fourth the in opinion unpublished an In

 ‘defendants the to related documentation sufficient given been had victim the that finding s’court trictdis the affirmed Court Circuit The .PSIRs’ defendants several of disclosure partial requesting motion

 ,statement the filed fact in had victim The .statement impact s’victim a file and prepare to sentencing

 in PSIR the need not did victim The .CVRA the of violative not was denial s’court district the and

.crime the of impact the describe to order

 require not does CVRA the that noted Texas in court district federal a of order unpublished An

 for need particularized ,compelling “a unless ,party third other or ,victim a to PSIRs of disclosure

 despite ,PSIR a of disclosure the require not does CVRA The .71demonstrated been has” disclosure

 an in ,Similarly .victims crime notify to” efforts best “its use must government the that language its

 information additional requested who funds investment of group a of members were who victims plemulti a to denied was PSIR a of disclosure ,court district federal Connecticut a in order unpublished

 full “to rights’ victims the that found court The .PSIR the in contained disclosures financial about

 by not but ,government the petitioning by satisfied be may CVRA the under” restitution timely and

 were courts Connecticut and Texas the of orders The .72defendant actual the from PSIR the obtaining

 on based PSIR s’defendant the to access denied were shooting fatal a of victim the of members ilyfam The .73court district federal Carolina North a of order published a ,Coxton .v .S.U in cited recently

 orders and opinions unpublished and published on and ,Court Supreme .S.U the of holdings prior the

 already had family s’victim that found court district The .courts appellate and district federal other of

 .PSIR the without sentencing regarding information sufficient afforded been

 the and cases prior between distinguished Appeals of Court Federal Circuit Sixth the 74Siler re In In

 after months eighteen PSIRs of disclosure for mandamus for petition a involved which case Siler

 in PSIRs the sought Siler .rights civil s’Siler violate to conspiracy of convicted were officers police

 was there that ruled court circuit federal The .officers the against case civil a in discovery of pursuit

 stated decision Siler The .PSIRs the release to court district the for CVRA the under authority no

 handled and confidential instead are but ,system judicial the within records public not are PSIRs that

 the in specified those than other parties to PSIRs of release authorize not does 32 Rule .accordingly

 failed Siler .sources public other from available often is PSIRs in found information ,Furthermore .rule

 PSIR nonpublic confidential the of release for” need special “show to

 their or ,members family their ,victims to PSIR the of disclosure that law case the from apparent is It

 disclosure partial or complete to access granted be to order in hurdles legal high clear must estates

 PSIRs of contents the of confidentiality the protect to duty legal a have officers Probation .PSIRs of

 officer probation the unless ,parties related or victims to released be cannot report The .breach from

.report the of part or all disclose to court a by ordered is

Agencies Government Other to Disclosure 4.

 the to and Prisons of Bureau Federal the to transmitted are PSIRs federal the ,sentencing After

 still is USPC the ,parole federal of abolition the Despite .)USPC (Commission Parole States United

 offenders federal for responsibility and jurisdiction has currently USPC The .agency federal viable a

 District certain; parole for eligible are who and 1987 1, November to prior offenses committed who

 reports Presentence .offenders Justice Military of Code Uniform and ,offenders Code Columbia of

.75decisions release making in USPC the by used still are Officers Probation .S.U by created
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

66

 disclosure party third of issue the addressed Circuit Second the for Appeals of Court Federal The

.76Industries Peerless and Industries Charmer .v States United in agencies government other to

 a ,Importers Peerless defendant about information contained report The .General Attorney State naArizo the to Service Probation States United the by prepared PSIR a of disclosure involved Charmer

 in case antitrust an in contendere nolo of plea a entered had that distributor liquor wholesale major

 Attorney Arizona the to ,approval judicial prior without ,sent and requested was report The .York New

 Charmer of subsidiary a against proceeding revocation license liquor a preparing was who General

 .Control and Licenses Liquor of Department Arizona the with conjunction in ,Industries Peerless and

 The .officers enforcement law unidentified from information hearsay and ,company the against tionsconten s’government the of description a ,Peerless from collected data financial included PSIR The

 in record public the of part become could PSIR the whether to as inquired General Attorney Arizona

 .Arizona

 return to General Attorney Arizona the requiring order injunctive an issued court Circuit Second The

 further court The .report the of made extracts and copies all with along court district the to PSIR the

 publicly made been already not had that report the of portion any of use or publication the prohibited

 flow the inhibit likely “would PSIRs of disclosure public allowing that reasoned court The .available

 disclosed be to PSIR a for order in that stated court The 77”.judge sentencing the to information of

 party third A 78”.need compelling a of showing particularized a “make must party the ,party third a to

 of ends the meet to “required is report the of disclosure that demonstrate must agency government

79“.justice

Media the to Disclosure 5.

 disclosure of topic the to pertinent is above discussed Schlette .v States United of case the Although

 .well as courts circuit Federal by decided been have cases other ,media the to

 of and ,Amendment First the ,law common of application and construction s’Court Supreme .S.U The

 .media the to PSIRs of release for implications have 80)FOIA (Act Information of Freedom the

 Circuit Seventh the of basis the was records judicial inspect to media the of right law common The

.81Corbitt .v States United in disclosure PSIR a for request s’newspaper Illinois an on ruling s’court

 extortion of counts three of chief police Illinois former a of conviction the from stemmed case The

 officials public by written letters numerous to ,part in ,due ,PSIR the in recommended was than tencesen lesser a imposed judge presiding the ,trial the of phase sentencing the During .racketeering and

 officials public which learning in interest strong a expressed ,departure downward the by concerteddis apparently ,Trustees of Board the and town the of Citizens .chief former the for leniency seeking

 to access for asking judge sentencing the to letter a sent Trustees of Board The .letters written had

 .officials town the by written letters the

 letters the and PSIR the of release the secure to moved trial criminal the covering newspaper A

 public the that and interest public a with affected was proceeding criminal entire the that argued pernewspa The .sentencing at guidelines the from departure downward the in judge the by upon relied

 what impose to judge the persuaded had factors what learning in interest strong especially an had

 because letters the of release the allowed Circuit Seventh The .sentence lenient a as perceived was

 denied court the ,However .appeal on letters the of disclosure the challenge not did defendant the

 functioning effective promote not would report the of release the that held and PSIR the of disclosure

 probation the to hindrance a constitute would disclosure that added court The .office probation the of

 analysis comprehensive a with court sentencing the provide to obligation its of performance s’office

Schlette s’Circuit Ninth the in interest s’public the that stated court The .82character s’defendant the of

 Seventh the ,Furthermore .83case this in interest public the of that than” order different “a of is case

 and ,substantial a make must PSIR a to access seeking organizations news that held court Circuit

.84report the of inspection public allow may court a before disclosure for need of showing ,specific
Reports and Investigations Preparole and Presentence

5 CHAPTER

67

Parties Third Other to Disclosure 6.

 to disclosure resist courts and parties third to PSIR the of disclosure address not does 32 Rule

States United .attorney s’defendant the and ,defendant the ,attorney s’government except anyone

 was PSIR the which in case unusual an was ,above ,to referred case Circuit Ninth a ,85Schlette .v

 served disclosure that found court The .estate s’victim murdered to and newspaper the to disclosed

 a showed also estate The .process sentencing the about information the to due interest public the

 ,duty a had allegedly who officer parole a against suit civil a in use for PSIR the for need compelling

 .defendant the about victim the warn to failed but

 above discussed those than other parties third to disclosure for rules and statutes the in differ States

 information current seek to advised are officers parole and officers Probation 5. through 1 sections in

 .PSIRs of disclosure on stance s’agency and laws s’state their about

 his or defendant the to disclosed be will PSIR every of part or all that probable most is it ,summary In

 ,however ,clear not is It .discretion judicial of exercise the or ,rule court ,statute of result a as counsel

 ,victims than other parties third interested to available made be will PSIR the of portions ,any if ,what

 selecting in care exercise should officers Probation .media the and ,agencies government other

 it ,doubt in When .accurate is information the that ensure and report a in inclusion for material lawful

.court the to disclosure of issue the leave to preferable is

 prevent to and ,liability criminal and civil possible to exposure avoid proactively should officer The

 should officers parole or Probation .advance to sworn is she or he that justice of interests the to harm

 acting or ,PSIR a in information inaccurate or false including knowingly and intentionally that know

 or litigation tort state for basis the be could ,truth its for disregard reckless or maliciousness with

 and ,possible are torts intentional other ,torts based-defamation to addition In 1983. § under litigation

 in exercised was care inadequate that claims defendant a when brought be can claims negligence

.report the of preparation

 Preparing for Liability Civil from Immune Generally Officers Probation .D

 Reports Investigation Presentence

 addressed specifically have appeal of courts federal and state several ,PSIRs preparing When

 inaccurate and false including of accused been have who officers probation against issues liability

 of District and Ninth the for Appeal of Courts Federal the including ,courts The .PSIRs in information

 enjoyed immunity judicial-quasi historic the citing claims liability rejected all have ,Circuits Columbia

 and 87York New in courts district federal ,Similarly .86PSIRs of preparation the in officers probation by

 As .immunity absolute officers granted have 89Appeals of Court State Ohio the and ,88Pennsylvania

 absolute same the have officers probation that held have courts most ,decisions these in evident

 act officers probation because reports investigation presentence preparing when judges as immunity

 is information inaccurate or false when granted be not will immunity Absolute .court the of agents as

 prepared who officer probation the by falsification intentional or malicious to due PSIR a in included

 .report the

 the within law case prior on relied ,90Ajello .v Peay ,case Appeals of Court Circuit Second federal A

 to entitled are officers probation state Connecticut that held and 94)Circuit th11 (Alabama and ,93)cuitCir th9 (California ,92)Circuit th5 (Louisiana including ,circuits other three of that as well as ,91circuit

 of submitting and preparation the on relies claim a when damages for suits from immunity absolute

 federal a of judgment final a appealed ,prisoner state Connecticut and litigant se pro a ,Peay .PSIRs

 of counts two on conviction after report presentence s’Peay a prepared had who Colon Officer tionProba Assistant against damages for action 1983 § a in complaint his of dismissal for court district

 false including willfully by rights constitutional his of Peay deprived Colon that claimed Peay .burglary
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

68

 explained and dismissal s’court lower the affirmed court Circuit Second The .PSIR the in information

 .immunity absolute to entitled are officers probation state Connecticut why

 York New and officers probation federal that ruled previously had it that stated court circuit The

 court The .claims damages similar for immunity absolute to entitled were officers probation state

 the at evidence present to and ,court sentencing the in heard be to opportunity an ,PSIRs in mationinfor of falsification alleged challenge to mechanisms procedural have defendants that reasoned

 challenged even had Peay .report a in information false or inaccurate to relevant discretion s’court

 Second The .report the in contained information false of basis the on appeal direct on sentence his

 by prepared report presentence the ‘,law York New and federal under as “...,states opinion s’Circuit

 69 .p’” (review judicial of layers two least at and scrutiny adversary to subject is officers probation the

 that consider law Connecticut of Provisions .)).1987Cir d2 (133 d.2F 821 ,Higgins .v Dorman citing

 to right s’defendant a of protection provides law The .function judicial a assist to is PSIRs of role the

 officers probation Connecticut that given irrelevant is PSIR the in information false included liberatelyde Colon that allegation s’Peay .report the in contained information accurate on based sentenced be

.PSIRs of preparation for immunity absolute enjoy

,Havenstrite .v Maynard in liability found Appeals of Court Federal Circuit Fifth the ,vein similar a In

 granted were ,officer probation federal a and Officer Probation .S.U Chief a ,defendants The .tencingsen to prior plaintiff to disclosed not was PSIR inaccurate an where) 1984 .Cir th5 (439 d.2F 727

 for action an from immune necessarily not were officers the ,exhausted were remedies istrativeadmin where ,that held court appellate the ,However .damages monetary from immunity absolute

 .relief injunctive and declaratory

 preparing in officers probation to granted is damages for claims from immunity absolute Although

 sentence a that rule the been long has It .substantial be can interest public the to harm the ,PSIRs

 that report a of basis the on sentenced is defendant a Where .95information false on based be cannot

 remedy The .96violated is process due to right her or his; unreliable or ,inaccurate ,false materially is

 to back case the remanding and sentence imposed the vacating is cases such in invoked usually

 with acted officer the unless imposed not usually is liability Civil .resentencing for court lower the

 .will ill deliberate or intent malicious

 REPORT AND INVESTIGATION PREPAROLE .II

ISSUES) PPIR(

 other to and PSIRs to access permit that rules and laws administrative and statutory are there ,allyperson reports presentence review to right constitutional no have inmates and defendants Although

 ,level federal the At .decisions release making in commissions and boards parole by used documents

 and publications prepared have agencies respective their that find will officers parole and probation

 contained information certain to access whom to and when determining in them guide that manuals

 As .98systems parole specific their create to free are States .97granted be should PPIRs and PSIRs in

.99guidelines sentencing adopted have and parole abolished have states 16 least at 2009, of

 the renamed 1976, May in effect took which ,100Act Reorganization and Commission Parole The

 Parole States United The .)USPC (Commission Parole States United the Parole of Board federal

 .S.U the within agency independent an as USPC the authorized 2008 of Act Extension Commission

 Congress by abolished was parole Federal 2011.101 November until) DOJ .S.U (Justice of Department

 1987 1, November to prior offenses committed who offenders federal for responsibility and risdictionju retains still USPC the ,earlier discussed As 1984.102 of Act Control Crime Comprehensive the in

 Military of Code Uniform; offenders Code Columbia of District certain; parole for eligible are who
Reports and Investigations Preparole and Presentence

5 CHAPTER

69

 who parolees and probationers state and; cases treaty-transfer in offenders certain; offenders Justice

.103Program Protection Witness Federal the in placed are

 then and Prisons of Bureau the to Office Probation .S.U the from forwarded are reports Presentence

 be should inmate an whether determine to used is report the where Commission Parole .S.U the to

 to used be will that information containing files to access given are inmates which to extent the cernscon) PPIRs (reports investigation preparole of out arises that issue major The .parole on released

 to had have courts ,litigated been has issue this Where .them release or detain to whether determine

 :questions three resolve

 ?PPIRs or/and PSIRs to access provide rule administrative or statute applicable any Does■ 

?proceedings release parole in process due to right a have prisoner the Does■ 

 ?PPIRs or/and PSIRs to access encompass it does ,right process due a such is there If■ 

 basis constitutional a on cases settle to them requires operate courts which under tradition The

 .105Callahan .v Pearson in overturned recently was 104Katz .v Saucier in inquiry part-two Court premeSu .S.U controlling prior the ,immunity qualified involving cases in ,However .possible whenever

 denying or granting in officers parole or probation for issue at rarely is immunity qualified Although

 use should courts lower the that holds case recent the in ruling the ,PPIRs or PSIRs to access

 rights civil of violation alleged an of constitutionality the decide to whether determining in discretion

 the whether ,is that—officials government for immunity qualified on ruling to prior cases 1983 § in

 be may” law established clearly “of issue the ,case a of outcome the to value little of are claims tionalconstitu underlying facts the If .misconduct alleged the of time the at established clearly was right

 judicial conserve to serves ruling Pearson The .constitutionality of consideration any to prior decided

 or official government state a of liability civil involving case 1983 § a in law established clearly of tionviola a is there if constitutionality of question the bypass to courts lower the permitting by resources

.employee

 contours the concerning suits although ,prisoners federal to access file granted has litigation Recent

 the about knowledgeable be must officers parole state and probation ,Therefore .specific tionallyjurisdic and bound-fact is prisoners state involving Litigation .possible still are right statutory the of

 .jurisdictions respective their in law case and ,rules administrative ,statutes

 Access File Prisoner Federal .A

 for guidelines the forth sets Manual Procedures and Rules s’Commission Parole States United The

 the document other or report any to access reasonable given be must prisoner federal a that videdpro 1976107 of Act Reorganization and Commission Parole The .106prisoners federal by files to access

 that material The .released be need material file all Not .decision release its making in use will USPC

 in defendant a to disclose not need court federal a that information the to identical is withheld be may

 eligible the to known made if ,that opinions diagnostic .e.i (32 Rule under sentencing with connection

 reveals that document any; program institutional his of disruption serious a to lead could ,prisoner

 if ,that information other any or; confidentiality of promise a upon obtained information of sources

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

 right a have inmates—clear is 108Julian .v DOJ States United in decision s’Court Supreme .S.U The

 federal a ,Julian In .release parole determining in used are which reports presentence their review to

 Information of Freedom the under Justice of Department States United the sued Arizona in inmate

 prisoner federal California a ,case similar a In .denied was PSIR his of copy a for request his after Act

 two The .PSIR his to access for FOIA the to pursuant Commission Parole States United the sued

 The .Julian under day same the on Court Supreme the by decided and consolidated were cases
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

70

 the to related matters for except ,disclosed be must PSIRs the and FOIA the under reports tencepresen their access can guilty adjudicated been have who defendants criminal the that held Court

 32 Rule for except ,reports presentence s’inmate an disclose must Commission Parole The .)tioninforma harmful potentially and ,opinions diagnostic ,sources confidential .e.i (exclusions 32 Rule

 .hearing parole a to prior representative designated s’inmate the or inmate the to ,exclusions

 to access inmates federal giving for standard the is case Julian the ,parole federal of instances In

 .S.U the consult should officers parole Federal .hearing parole a to prior reports presentence their

.guidance further for Manual Procedures and Rules s’Commission Parole

 Access File Prisoner State .B

 file grants that commission or board parole a or ,rule administrative ,statute state a is there Where

 restricted is inmate an by filed action of cause potential a of scope the ,prisoner state a to access

 a limit that exceptions any of applicability the and ,rule or statute the with compliance of issues to

 can inmate an ,provisions these of absence the In .PPIRs or/and PSIRs to access s’prisoner state

 access includes right the that and ,making decision release parole in process due to right mentAmend Fourteenth a has she or he that establishing by litigation through access file secure only

 and Greenholtz of cases the in inquiry that addressed has Court Supreme The .file her or his to

 .Conner

Applies Process Due Where—Case Greenholtz The 1.

 of process due without liberty of person a depriving from states bars Amendment Fourteenth The

 took Court Supreme the When? context release parole the in” liberty “of meaning the is What .law

 Courts Federal The .divided sharply were appeal of courts federal the 1979, in question that up

 not was” liberty “that held had 109Circuits Tenth and ,Ninth ,Sixth ,Fifth ,Third the for Appeals of

 ,Seventh ,Fourth ,Second the But .inapplicable therefore were rights process due that and involved

 was controversy This .conclusion opposite the reached had 110Circuits Columbia of District and

.111Complex Correctional and Penal Nebraska the of Inmates .v Greenholtz in settled

 created-statute state or constitutional to entitled were they that argued inmates ,Greenholtz In

 state a unless that held Court Supreme The .determinations release parole in rights process due

 constitutional s’prisoner the ,paroled be will prisoner a that expectation reasonable a creates law

 The .applies right process due federal no and process release parole the by affected not is” liberty“

:opined Court

 the that hope mere a than more no provides parole of possibility the out holds state the That

 the than more no is here asserted interest general the extent that to . . . obtained be will benefit

 by protected not is which hope ,prison another to transferred be not will he that hope s’inmate

.112 . . . process due

 created statute the that held Court the ,113exist to found were factors release-anti certain” unless “erprison eligible-parole a release” shall “board parole the that provided law state Nebraska Because

 liberty created-state a under applied process due that and expectation reasonable necessary the

 finding and ,statute Nebraska the of wording specific the in conclusion its grounding By .interest

 decisions similar that assured Court the ,requirements process due with complied statute the that

 a account into taking by basis case-by-case a on made be necessarily would states other about

 .statute its in wording particular s’state

 for exists parole receiving in interest liberty protected constitutionally no that holds Greenholtz

 or board parole a requires that language mandatory contains statute state a unless prisoners state

 parole the that provide rules and statutes state If .instances certain in parole grant to commission

 been not has interest liberty protected a ,inmate an to release grant” may “commission or board
Reports and Investigations Preparole and Presentence

5 CHAPTER

71

 authorities parole by released be” shall “inmate an that states statute the if ,Conversely .established

 protected interest liberty a creates language mandatory the ,satisfied are conditions certain when

 denied be cannot that Amendments Fourteenth and Fifth the of Clauses Process Due the under by

 process due s’inmate an ,parole in interest liberty a has inmate an Where .law of process due without

.behalf her or his on evidence present or statements make and heard be to portunityop an has inmate the which at hearing informal an and notice by ,minimum a at ,fulfilled are rights

 Rejected Is Standard Greenholtz The—Conner .v Sandin 2.

 ,case litigation prison a ,Conner .cases process due prisoner in standard” language mandatory “holtzGreen the abandoned Court the ,Conner .v Sandin ,case Court Supreme States United 1995 the In

 based one from inquiry interest liberty the of focus the shifted impermissibly “had courts the that held

 to According 114”.regulation particular a of language on based one to deprivation the of nature the on

 regulations and statutes federal and state search to prisoners led had focus in shift this ,Court the

 in established principles interest liberty that held then Court The .claims interests liberty of bases for

 ,rights process due establishing in upon relied be should ,115McDonnell .v Wolff as such ,cases earlier

 proper the ,Wolff Under .Greenholtz in used standard” language mandatory “evolving the than rather

 .interest liberty s’prisoner a of scope the against concerns management prison matelegiti of needs the balance must courts that holds Conner .deprivation the of nature the is standard

 or ,rules ,law state of wording the by created be may interest liberty protected a—decision holtzGreen the in set was protection process due to leading interests liberty the defining standard The

 prior the to return a indicated which Conner in rejected was standard this ,Nevertheless .regulations

Conner ,prisoners involves files parole to access Because .Wolff in forth set standard balancing

 wording the where instances in files to access sought prisoners which in cases in apply likely would

?PPIRs or/and PSIRs to access include process due does :remains tionques The .process due by protected be to was that interest liberty a create to appeared law state of

 ?Files to Access Include Process Due Does 3.

 nor term the neither” ,law of process due “to refer Amendments Fourteenth and Fifth the Although

 and procedural :rights process due of types two are There? mean that does what But” .fairness talfundamen “is process due of definition basic The .Constitution .S.U the in defined is substance its

 and th5 the of Clauses Process Due the by guaranteed hearing a and notice of requirements malmini he]t “[as process due procedural defines) 2009 .,ed th9 (Dictionary Law s’Black .substantive

 may interest property or ,liberty ,life significant a of deprivation the if] especially [,Amendments th14

 of Clauses Process Due the that doctrine he]t “[as process due substantive defines s’Black” .occur

 a further to and content in reasonable and fair be to legislation require Amendments th14 and th5 the

 States United the by defined partially was process due Procedural” .objective governmental legitimate

 :follows as Court Supreme

 interested apprise to ,circumstances the all under ,calculated reasonably notice is finality cordedac be to is which proceeding any in process due of requirement fundamental and elementary An

 ....objections their present to opportunity an them afford and action the of pendency the of parties

.116information required the convey to reasonably as nature such of be must notice The

 its derives that concept flexible a as treated been has process due ,jurisprudence contemporary In

 particular a in stake at interests and rights competing the of weight and nature the from meaning

 .S.U the by considered fully case parole first the In .test balancing a is it ,words other in—proceeding

 determine to analysis balancing a applied Court the ,117)1972 (Brewer .v Morrissey ,Court Supreme

 safeguards procedural the expanded Court the ,Morrissey In .cases revocation in rights’ parolees

 due that signal a as analysis s’Court the took courts Lower .hearings revocation in process due for

 to content give to process due weighing began and proceedings parole other to apply should process
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

72

 embraced process due that concluded commentators Although .contexts of variety a in concept the

Ward .v Williams in ,Thus .view of point this with agree to willing as not were courts the ,118access file

 ,that Greenholtz before year the in held Circuit Second the for Appeals of Court Federal the ,119)1977(

 due some to subject was decision release parole the in applicant parole state a of interest the while

 .required constitutionally not was file parole the of disclosure the ,protections process

 personal a receive prisoner) state (each that requirement constitutional no discern we “stated pealsAp of Court Circuit Fourth Federal the ,Greenholtz to prior also ,120Shields .v Franklin in Likewise

 the before appear to behalf his in witnesses call to entitled be or ,files his to access have ,hearing

 Governing Rules s’state the of violation in acted Parole of Board State the where that finding by sionconclu different somewhat a reached court district federal a ,122)1984 (Board Review Prisoner .v erWalk In 121”.authorities parole the of discretion the to left better are which matters all are These .Board

 .process due of infringement an ruled was file his to access inmate an allow to failure ,Parole

 or procedural and legislation through either ,Conner .v Sandin in decision s’Court Supreme the After

 to used be would that information to access’ prisoners authorizing began states ,rules administrative

 their pursue to action of cause a bring can Inmates .proceedings parole in release their determine

 .interest liberty legitimate a have they and breached been has right that when process due to right

 Manual Procedures and Rules USPC The .files to access includes process due ,system federal the In

 the in consideration into taken be can that information the outlined parole federal governs that) 2010(

:procedure determination release

 .CONSIDERED INFORMATION 2.19§ 

 available if ,consider shall Commission the determination preparole/parole a making In) a(

 :relevant and 

is prisoner such which in facility the of staff the which recommendations and Reports) 1 (

 ;make may confined 

earlier of record or report a including ,record criminal prior s’prisoner the of reports Official) 2 (

 ;experiences parole and probation 

 ;reports investigation sentence-Pre) 3 (

the by sentencing of time the at made parole s’prisoner the regarding Recommendations) 4 (

 ;attorney prosecuting and judge sentencing 

 and; offender the of examination psychiatric or ,mental ,physical of Reports) 5 (

for offense the of victim any by ,otherwise or orally presented be may which ,statement A) 6 (

emotional and ,psychological ,social ,financial the about imprisoned is prisoner the which 

 .victim such by suffered loss or ,to done harm 

(b(

concerning information relevant additional such consideration into taken be also shall There) 1 (

reasonably be may as) prisoner the by submitted information including (prisoner the 

relevant of submission the encourages Commission The .)4207 .C.S.U 18 (available 

.123persons interested by prisoner eligible an concerning information 

 given be must parole for eligible is who inmate federal a ,hearing release a to prior days 60 least At

 consider will USPC the that documents and reports of disclosure request to right her or his of notice

 the to disclosed be to required are requested documents The .124determination release its making in

 .C.S.U 18 under disclosure from exempt are that Documents .125hearing the to prior days 30 inmate

 to subject not is that information reveal not does that manner a in summarized be must) c(4208
Reports and Investigations Preparole and Presentence

5 CHAPTER

73

 federal Under .126material exempted the of content basic the of aware is inmate the that so disclosure

 Probation .S.U a from PSIR updated any as well as ,sentence their compute to used was that tionconvic each for PSIR the including ,files their access to right a have inmates ,procedures parole

 the of Chairman the to appeal may she or he ,denied is request disclosure s’inmate an If .127Officer

.128USPC

 a in used be to documents or files to access for processes s’state particular a on information For

 ,example For .regulations agency and ,rules ,statutes s’state that consult must one ,hearing parole

 ,parole in interest liberty a create that rules or statutes in language mandatory have which states in

 to similar process a through inmates to available be likely most will files and applies process due

 ,used is language mandatory-non which in states those For .process federal described-above the

 s’state Each .hearings parole for inmates to files of disclosure for provision a be not may or may there

 due procedural and substantive of contexts the in examined be must regulations and ,rules ,statutes

.hearings parole for files to access’ inmates includes process due if determine to process

Access Victim .C

.129accused the of escape or release any of or crime the involving ,proceeding parole any or ,ceedingpro court public any of notice timely and ,accurate ,reasonable to right the “have also They .ceedingpro parole or release any at heard reasonably be to right a have victims Crime ,CVRA the Under

 release attend may parties interested other and Victims .)victims to disclosure PSIR on ,supra ,siondiscus see (PPIR a of or PSIR of content the view to right a have victims that mean not does This

 parole and Probation .systems parole state many in and 130system parole federal the in hearings

 ,when ,if determine to jurisdictions specific their in procedures and rules the consult should officers

.processes revocation or release in participate can members family s’victim or victim a how and

Access Party Third Other .D

 copies obtain may parties third that states) Manual USPC (Manual Procedures and Rules USPC The

 who parolee or inmate the from authorization of proof required with only but ,131records disclosable of

 through parties third to available also are records disclosable Some .records the of subject the is

 created records of copies disclosable request To .)Act Privacy (1974 of Act Privacy the or FOIA the

 or FOIA the under requests make generally must party third a ,USPC the than other entity an by

 from exempt are that documents of portions or Documents .agency originating the to Act Privacy the

 other are There .agency originating the or USPC the by withheld be may FOIA the under disclosure

 but ,Manual USPC the in discussed records USPC of confidentiality to exceptions and limitations

 redacted or complete of disclosure the on focuses which chapter this of scope the beyond are they

.132PPIRs and PSIRs

HEARING PAROLE A OF NOTICE TO RIGHT .III

 of notice to right a have inmates ,parole in interest liberty protected a to applies process due Where

 Under .due is that process procedural minimal of element essential first the is it because hearing a

 a establish can prisoner the if right procedural fundamental a becomes notice ,Conner .v Sandin

 ,hearing parole a of prisoner a to notice for provision statutory without Even .parole in interest liberty

 nature The .interest liberty a creates rule or statute a where it require to expected be could courts

 ,evidence obtain to time inmate the permits it that in functional be would requirement notice the of

 to right the without meaningless be would notice ,Conner under interest liberty a establish can onerpris a Where .jurisdiction particular a in permitted if ,evidence adverse challenge and ,file the inspect

 necessarily not does right a such ,However .hearing parole the at evidence present to and present be

 by considered information provided have may who witnesses any of appearance personal require
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

74

 is heard be to opportunity the and Notice .133decision release the making in commission or board the

 an of requirement s’court a satisfy likely would that process making-decision the into input functional

 .hearing parole a in participation meaningful and notice to rights process due s’inmate

 parole a to related rights process due fundamental has inmate federal a—clear are rules federal The

 interest liberty a where states those in ,However .state to state from systems parole of natures versedi the given uncertain sometimes is due is process what of clarity the ,inmates state For .hearing

.rights process due essential malmini s’inmate an of first the is hearing parole a of notice ,rule or statute state by created is parole in

SUMMARY

 laws the by and ,rules and law federal by regulated are PPIRs and PSIRs .important are reports tioninvestiga preparole and reports investigation presentence that reasons key examined chapter This

 reports these which in ways the of component essential an also is law Case .state each of rules and

 legislation rights’ victims of emergence The .system justice criminal the in used and prepared are

 PSIR to access’ victims surrounding issues the of many and disclosure of aspects some altered has

 in model rehabilitation the to return The .courts the by determined been have information PPIR and

 investigating preparole and presentence of course the changing in factor a been also has corrections

.reporting and

 by confounded is PPIRs and PSIRs of use and preparation the of complexity the of discussion Any

 officers parole and probation where system federal the in ,liability civil of those especially ,issues galle the out sort to uncomplicated relatively is It .systems state and federal the between differences the

 explaining fully ,However .wrongdoing of absence the in immunity absolute afforded generally are

 ,regulations ,rules ,statutes of diversity and volume sheer the to due problematic more is issues state

 .territories .S.U and ,Columbia of District the ,state each to pertain that guidelines and ,law case

 probation federal for endnotes and text chapter the in provided been have guidance for Resources

 adequately assistance for agencies respective their to look must ,territories .S.U and Columbia of trictDis the in counterparts their and ,officers parole and probation state ,Conversely .officers parole and

 ,civil avoid to order in lawfully and ,fairly ,accurately PPIRs and PSIRs the use and understand to

 .liability administrative or ,criminal

NOTES

 .P .Crim .R .Fed as endnotes following the in cited are Procedure Criminal of Rules Federal The 1.

 or” Rule “the as to referred is Procedure Criminal of Rules Federal the of 32 Rule ,text the In .)2010(

.“32 Rule“

 A :Reports Investigation Presentence ,Hippensteel Daryl & Stinchcomb .B Jeanne see ,model tionrehabilita the of emergence-re contemporary the and PSIR the of history the of discussion a For 2.

 .(2001) 164 .Rev .y’Pol .Just .Crim 12 ,?Relic Model Medical a or Tool Model Justice Relevant

.(1949) 241 .S.U 337 ,York New .v Williams 3.

.(2004) 296 .S.U 543 4.

.crime a of elements and factors sentencing between distinction the of nationexpla and finding s’Court Supreme .S.U the for) 2000 (466 S.U 530 ,Jersey New .v Apprendi See 5.

 .L .Crim .J 58 ,Policy Sentencing in Factors Some ,Wilkins .T.L and Carter .R .,g.e Compare 6.

 & ,Lopez John ,Cummings Debra ,Kingsnorth Rodney); 1976 (503 Science Police and ,Criminology

 Individualized of Myth The :Office Probation Court the and Sentencing Criminal ,Wentworth Jennifer
Reports and Investigations Preparole and Presentence

5 Chapter

75

 Utility The :PSIRs ,Robertson Jeremy & Rush Christina); 1999 (255 .J .Sys .Jus 20 ,Revisited Justice

 .(1987) 147 .Behav .Hum & Law 11 ,Decision Sentencing the in Information of

 of portions some) (2010 (119 .Rev y’Pol ,Just .Crim 21 ,Note Research A :Report Investigation tencePresen the on Decisions and Perspectives Attorney ,Montemayor .D Carlos & Alarid Fiftal Leanne 7.

.(counsel defense for than prosecutors for import more have PSIR the

3. note supra ,Williams also see; 443 .S.U 404 ,Tucker .v States United 8.

 the to refer to continue must judges federal that held Court Supreme The .)2005 (200 .S.U 543 9.

 are guidelines the—them follow to bound not are judges but ,Guidelines Sentencing States United

.mandatory not ,advisory

/Guidelines/gov.ussc.www://http at available) 2010 (Manual Guidelines Sentencing Federal ,sionCommis Sentencing .S.U see] (.G.S.S.U hereinafter [Guidelines Sentencing States United The 10.

 .C.S.U 18 (1984 of Act Reform Sentencing the under created were) cfm.index/guidelines_2010

 established and system parole federal the abolished which) 991-998 §§ .C.S.U 28 3351-3673,§§ 

 .scheme sentencing based-determinate a

 .(2010) (1)(d(32 .P .Crim .R .Fed 11.

.(2010) (E(-)A)(1)(d(32 .Id 12.

 ,submitted and prepared is PSIR the after or before ,court the permits) 2010) (b(3552 § .C.S.U 18 13.

 felony a of report and study presentence additional an conduct to Prisons of Bureau the order to

 resources professional adequate no “are there that finds court the if ,defendant misdemeanor or

 study The “,states code the of section This” .study the perform to community local the in available

 of Bureau the that matters other any and court the by specified are as matters such into inquire shall

 3553 section in forth set factors the to pertinent are believe consultants professional the or Prisons

14. note infra See” .)a(

 of consideration the ,things other among ,for provides) 2010) (a(3553 § .C.S.U 18 14.

—imposed sentence the for need the) 2)(a(

 just provide to and ,law the for respect promote to ,offense the of seriousness the reflect to) A(

 ;offense the for punishment

 ;conduct criminal to deterrence adequate afford to) B(

 and; defendant the of crimes further from public the protect to) C(

 or ,care medical ,training vocational or educational needed with defendant the provide to) D(

.manner effective most the in treatment correctional other

.(1986) 79 .S.U 477 ,Pennsylvania .v McMillan 15.

 The ,Courts States United the of Office Administrative ,Services Pretrial and Probation of Office 16.

 .G.S.S.U to commentary citing) 2006 March .Rev) (107 Publication (Report Investigation Presentence

 1.3.A6§ 

.(2004 .Cir th5 (277 274, d.3F 367 17.

 (1990 .Cir .d2 (123 d.2F 922 ,Cortes .v .S.U); 2002 .Cir d3 (84 d.3F 281 ,Tyler .v .S.U .,g.e See 18.

.(ordered-court not and routine is interview Presentence(

18. note supra ,Tyler See 19.

1510. d.3F 11 ,Washington .v .S.U also See; .Id 20.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

76

 in obtained statements s’defendant) (2006 .Cir th4 (442 437, d.3F 438 ,Nichols v .S.U .,g.e See 21.

.(voluntary otherwise were statements the if ,considered be may Miranda of violation

.[CVRA hereinafter) [2010 (3771 § .C.S.U 18 22.

://http at available ,)1999 (Statements Impact Victim ,Crime of Victims for Center National The 23.

 accessed last (32515=DocumentID&DocumentViewer=dbName?aspx.main/ncvc/org.ncvc.www

.(2010 December

 available ,)2008 (Statements Impact Victim :Help Get ,Crime of Victims for Center National The 24.

Document?aspxnz.Download/documentViewer/Components/Net.AGP/ncvc/org.ncvc.www://http at

23. note supra also See .)2010 December accessed last (45721=ID

 24. note supra See 25.

 (1998 Cir d2 (216 210, d3 .F 140 ,Sciarrotta .v Hili); offense current the to related not is that formationin and evidence hearsay include may PSIR) (1969 (492 489, .S.U 394 ,States United .v Gregg 26.

 d.3F 442, Beasley .v .S.U); PSIR the in information hearsay consider to permitted is court sentencing(

 hearsay corroborative) (2001 .Cir th9 (975-977 971, d.3F 258 ,Berry .v .S.U); PSIR in information ifyclar to permitted report prepare who officer probation of testimony hearsay) (2006 .Cir th6 (593 386,

 .(reliability of indicia minimum establish to court sentencing by considered be may codefendants from

.(1949) 247 241, .S.U 337 ,York New .v Williams 27.

.(1978 .Cir th9 (1339 d.2F 580 ,States United .v Farrow 28.

 .v States United); 1991 .Cir th4 (47 d.2F 935 ,Smith .v States United ,Johnson .v States United 29.

 .(1989 .Cir th7 (844 838, d.2F 886 ,Jackson

.(1998 .Cir th9 (1088 d.3F 152 ,Govan .v States United 30.

 United also see; information such contained York New .v Williams in report presentence The 31.

.(1986 .Cir th10 (870 d.2F 785 ,Graves .v States

 .Cir th10 (439 435, d.3F 112 ,Furman .v States United also see); 1992 .Cir .C.D (174 171, d.2F 960 32.

 dismiss to agreed government that defendant the against counts unresolved to references) (1997

.(agreement sentencing a violate not does it if court sentencing a by considered be may

 note accompanying text) 2009 (681 .Proc .Crim .Rev .Ann .J.L .Geo 38 ,Sentencing .IV :Article See 33.

2200.

 d.2F 930 ,McCrory .v States United); 1991 .cir d3 (321 d.2F 926 ,Torres .v States United .,g.e See 34.

 & 34 notes infra also see); 2000 .Cir th9 (789 d.3F 216 ,Haynes .v States United; 1991 .Cir .C.D (63

35.

 d.3F 88 ,Hernandez-Tauil .v States United); 2000 .Cir th7 (854 d.3F 214 ,Brimah .v States United 35.

.(1991 .Cir th11 (1226 d.2F 934 ,Lynch .v States United); 1996 .Cir th8 (576

,Dam Van .v States United also See); 2002 .Cir st1 (86 at 78 d.3F 303 ,Acosta .v States United 36.

 United); 1993 .Cir th5 (1171 d.3F 7 ,Ortiz-Montoya .v States United); 2007 .Cir th10 (1194 d.3F 493

 .(1993 .Cir th6 (1338 d.3F 4 ,Jenkins .v States

.(2010) (1)(d (32 .P .Crim .R .Fed 37.

.Id 38.

.(2)(d(32 at .Id 39.

.Id 40.

.(1995) 135 d.3F 43 ,Huckaby .v States United 41.
Reports and Investigations Preparole and Presentence

5 CHAPTER

77

.(1972 .Cir st1 (215 d.2F 464 ,Piccard .v States United 42.

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

.(2010) (2)(c(32 .P .Crim.R .Fed 44.

.(2001 .Cir th7 (655 d.3F 259 ,Hodges .v States United 45.

 th10 (1510 d.3F 11 ,Washington .v States United); 2002 .Cir d3 (84 d.3F 281 ,Tyler .v States United 46.

.(1993 .Cir

 824 d.3F 63 ,Benlian .v States United); 2003 .Cir th8 (732 d.3F 344 ,Archambault .v States United 47.

.(1993 .Cir th10 (1510 d.3F 11 ,Washington .v States United); 1995 .Cir th9(

 225 ,Moore .v States United and) 1990 .Cir st1 (571 d.2F 909 ,Gianetta .v States United .,g.e See 48.

.(2000 .Cir th6 (637 d.3F

 d.2F 716 ,Scalzo .v States United); 2001 .Cir d3 (758, d.3F 243 ,Nappi .v States United .,g.e See 49.

.(1990 .Cir th10 (1443 d.2F 909 ,Alvarado .v States United); 1983 .Cir th7 (463

.(1976 .Mich .D.E (1203 .Supp .F 411 ,Long .v States United 50.

.(1977 .Cir th5 (951 d.2F 547 ,Hodges .v States United 51.

 356 ,Molina .v States United); 1977 .Cir th5 (1215 d.2F 556 ,Martinello .v States United .,g.e See 52.

 .(2000 .Cir d3 (826 d.3F 235 ,Simmonds .v States United); 2004 .Cir d2 (269 d.3F

.(1976) 389 d.2F 545 ,Figurski .v States United 53.

.Id 54.

 and Practitioners What ,Butler .P Russell ,generally see ,CVRA the on guidance practical For 55.

 19 ,Proceedings Sentencing Federal in Rights’ Victims Crime Regarding Know to Need Judges

 .(2006 October (21 .Rep g’Sent .Fed

.(2010) (4)(a(3771 § CVRA 56.

 organizations ,addition In .public the to open rarely are proceedings such but ,proceedings quencydelin and offenders juvenile exclude not does CVRA the that appears It .)2010) (e(3771 § CVRA 57.

 these of discussion brief a for 10 & 5 .pp 63 note infra ,Wood See .CVRA the from excluded not are

.issues

8. .p 63 note infra ,Wood See 58.

.(2010) (8)(a(3771 § at .Id 59.

.(2010) (1)(c(3771 § at .Id 60.

.(2010) (1)(d(3771 § at .Id 61.

.act the of) a (subsection to referring ,)2010) (1)(b(3771 § at .Id 62.

 June (Center Judicial Federal ,Courts Federal the and Act Rights’ Victims Crime The ,Wood Jefri 63.

 the on available are law case and changes legislative of updates) 1 .p (Wood to According ((.)2008 2,

((.dcn.fjc.cwn at website intranet s’Center

10. .pp 92 note infra cited case See 64.

.(2009) .ed th9 ,Dictionary Law s’Black 65.

.(2006 .Cir th9 (1136 d.3F 453 ,Kenna re In 66.

.(1988 .Cir th9 (1574 d.2F 842 ,Schlette .v States United 67.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

78

1584. at .Id 68.

1582. at .Id 69.

.curiam per) 2008 .Cir th4 (510 .Appx.Fed 262 70.

.(2007 .Tex .D.S (2274393 WL 2007 ,Corp Petroleum Citgo .v States United 71.

.(2007 .Conn .D (951666 WL 2007 ,Sacane .v States United 72.

.(2009 ..Car.N.D.W (737 d.2Supp.F 598 73.

.(2009) 604 d.3F 571 74.

 website s’Commission Parole States United ,Justice of Department States United generally See 75.

/.uspc/gov.justice.www://http at

1164. d.2F 711 76.

 1173. 1164, d.2F 711 77.

 1175. at .Id 90. 78.

.Id 79.

.[FOIA hereinafter) [2010 (552 § .C.S.U 5 80.

.(1989) 224 d.2F 879 81.

229. at .Id 82.

240. at .Id 83.

.Id 84.

73. note supra See 85.

 .Cir .C.D (1539 d.2F 856 ,Barry .v Turner); 1985 .Cir th9 (1402 d.2F 777 ,Witt .v Demoran See 86.

 .(1988

.(1988 .Y.N.D.S (412 .Supp .F 699 ,McCarthy .v Sheldon 87.

.(1993 .Pa .D.S (322 .Supp .F 839 ,Nicola .v Bieros 88.

.(1991) 1288 d.2E.N 602 ,Eskridge .v Clark 89.

.(2006 .Cir d2 (65 d.3F 470 ,Ajello .v Peay 90.

 d.2F 821 ,Higgins .v Dorman); court to PSIR of furnishing and preparation for officers probation eralfed for damages for claims from immunity absolute) (1990 .Cir d2 (210 d.3F 140 ,Sciarrotta .v Hili 91.

 absolute granting in officers probation federal to officers probation York New comparing) (1987 (133

.(same for immunity

 claims damages from immunity absolute granting) (.1988Cir th5 (172 d.2F 849 ,Griffith .v Freeze 92.

.(PSIRs of submission and preparation for officers probation Louisiana to granted

 immune absolutely officers probation California) (1986 .Cir th9 (155 d.2F 781 ,Witt .v Demoran 93.

.(106 note supra as same for claims damages from

 probation Alabama for immunity absolute) (1984 .Cir th11 (1489 d.2F 731 ,Chesser .v Hughes 94.

.(93 & 92 notes supra as same for claims damages from officers

 .(1948) 736 .S.U 334 ,Burke .v Townsend 95.
Reports and Investigations Preparole and Presentence

5 CHAPTER

79

 d3 (179 d.2F 571 ,States United .v Moore); 1979 .Cir th9 (560 d2 .F 592 ,Lasky .v States United 96.

.(1978 .Cir

 2006 March ,Report Investigation Presentence The 107, Publication ,Courts States United the of ficeOf Administrative ,Services Pretrial and Probation of Office of versions current the generally See 97.

 may revision newer that note [pdf%20107.publication/lib_pdf/org.fd.www://http at available revision

 Manual Procedures and Rules s’Commission Parole States United the and]; elsewhere available be

 June updated last; pdf111507.manual-uspc/procedures_rules/uspc/gov.justice.www://http at available

.(htm.rulesmanual/procedures_rules/uspc/gov.justice.www://http at website USPC the from (2010 30,

.(1979) 1 .S.U 442 ,Complex .Corr & Penal .Neb of Inmates .v Greenholtz 98.

.(2009) 817 at 681 .Proc .Crim .Rev .Ann .J.L .Geo 38 ,Sentencing .IV :Article 99.

 .(1976) 4201-4218 .C.S.U 18 100.

.(2008) 3013 Stat 122 110-312, .No .L .Pub 101.

4201- §§ .A.C.S.U 18 repealing) [1984 (2027 1837, .Stat 98 ,)5)(a(218 § 98-473 .No .L .Pub (102.

.explanation for 107 note supra See]) 4218

/.uspc/gov.justice.www://http at website] USPC afterherein [s’Commission Parole States United ,Justice of Department States United generally See 103.

.(2001) 194 .S.U 533 104.

.(2009) 223 .S.U 555 105.

99. note ,Manual Procedures and Rules s’USPC supra generally See 106.

 .L.Pub 1984 of Act Control Crime Comprehensive the by repealed) 1976 (4201-4218 .C.S.U 18 107.

1987. 1, .Nov to prior committed offenses to applicable still is 1976 of Act ganizationReor and Commission Parole the ,however; 2027 .Stat 98 1984, 12, .Oct ,)5)(a(218 § ,II Title 98-473,

.(1988) .1S.U 486 108.

 438 .,Bd Parole State Jersey New .v Madden); 1972 .Cir d3 (477 d.2F 459 ,Ashby .v Mosley See 109.

 d.2F 528 ,Lundgren .v Brown); 1976 .Cir th5 (86 d.2F 543 ,Skelton .v Cruz); 1971 .Cir d3 (1189 d.2F

 d.2F 477 ,Parole of .Bd States United .v Scarpa); 1976 (917 .S.U 429 ,denied .cert ,).Cir th5 (1050

 .No .,Bd Parole Kentucky .v Scott); 1973 (809 .S.U 414 ,moot as vacated ,)banc en) (.Cir th5 (278

 960 .S.U 434 ,denied .cert ,)1977 .Cir th6 (805 d.2F 556 .,Bd Parole Kentucky .v Bell .nom sub firmedreaf ,)1976 (60 .S.U 429 ,mootness of consideration for remanded ,)1975 15, .Jan .Cir th6 (741899

,Parole of .Bd States United .v Schawartzberg); 1972 .Cir th9 (892 d.2F 454 ,Kerr .v Dorado); 1978(

 .(1968 .Cir th10 (297 d.2F 399

 d2 (925 d.2F 500 ,Parole of .Bd State York New ,Chairman .v Johnson .rel ex States United See 110.

 566 .,Bd Parole State York New .v Coralluzzo); 1975 (1015 .S.U 419 ,moot as vacated ,)1974 .Cir

 .v Bradford); 1978 (912 .S.U 435 ,granted improvidently as dismissed .cert ,)1977 .Cir d2 (375 d.2F

,Shields .v Franklin); 1975 (147 .S.U 423 ,moot as vacated ,)1974 .Cir th4 (728 d.2F 519 ,Weinstein

.rel ex States United); 1978 (1003 .S.U 435 ,denied .cert ,)banc en) (1977 .Cir th4 (784 d.2F 569

 1270 d.2F 511 ,Parole of .Bd States United .v Childs); 1975 .Cir th7 (797 d.2F 525 ,Wolff .v Richerson

.(1974 .Cir .C.D(

.(1979) 1 .S.U 442 111.

11. at .Id 112.

.(1971) (1)114 831, .Stat .Rev .Neb 113.

472. at) 1995 (472 .S.U 515 114.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

5 CHAPTER

80

.(1974) 539 .S.U 418 115.

.(1950) 657 652, .Ct.S 70 306, .S.U 339 .,Co Trust & Bank Hanover Central .v Mullane 116.

.(1972) 471 .S.U 408 117.

.(1978) 260 .R.L Fordham 47 ,Analysis Process Due A :Files Parole to Access Prisoners ,Note 118.

.(1978) 844 .S.U 434 ,dismissed .cert ,)1977 .Cir .nd2 (1143 d.2F 556 119.

.(1978) 944 .S.U 435 denied .cert ,)1977 .Cir th4 (800 at 784 d.2F 569 120.

800. at .Id 121.

 1986) (b(1610.30 § Code.Admin .Ill 20 ,statute by superseded) 1984 .Ill .D.S (556 .Supp.F 594 122.

 .v Braxton also See .)1990 Ill .D.N (92767 WL 1990 Klincar .v Blackwell in recognized as ,).Supp

 (1982 .Va.W (225 d.2E.S 298 ,Dale .v Stanley and ,contra) 1983 .Md .D (1479 .Supp.F 567 ,Josey

.(otherwise dictate considerations security unless file see to entitled prisoner(

 30-31. .pp 97, note at) 2010 (Manual Procedures and Rules USPC supra See 123.

147-148. .pp at .Id 124.

151. .p at .Id 125.

148. .p at .Id 126.

149. .p at .Id 127.

155. .p at .Id 128.

 .(2)3771 § CVRA 129.

23. .p 97, note at) 2010 (Manual Procedures and Rules USPC supra See 130.

-162. 154 at .Id generally See 131.

.Id 132.

 letters of authors confront to right no) (1983 (14 d.2P 657, 150, Idaho 104 ,Dermitt .v Ybarra See 133.

.(report presentence s’parolee in contained
6 CHAPTER

SUPERVISION

 INTRODUCTION

SEIZURE AND SEARCH .I

Case Leading the Is Wisconsin .v Griffin .A

 Unaddressed Left Questions the of Many Answers Knights .v States United .B

Wisconsin .v Griffin by 

 of Searches for Standards Separate Two Creates California .v Samson .C

Parolees and Probationers 

 of Searches Conducting of Scope the Concerning Holdings State .D

Parolees and Probationers 

Search a Conducting for Reasonableness of Standards State .E

Probationers of Searches Conducting to Pertinent Still Issues .F

Officers Parole/Probation with Conducted Searches Police 1. 

Parole/Probation a Directing by or Alone Officers Police by Conducted Searches 2. 

Search a Conduct to Officer 

FIREARMS AND OFFICERS PAROLE/PROBATION .II

INFORMATION DISCLOSE TO NOT OFFENDER THE TO DUTY .III

Probationer-Officer Probation No Is There Says .C Michael .v Fare of Case The .A

Communication Privileged 

Privacy of Invasion .B

Slander and Libel .C

Justified Is Disclosure if Contract a with Interference Tortious No .D

Confidentiality of Rules Federal .E

Treatment Abuse Substance Regarding Confidentiality of Rules Federal 1. 

(HIPAA (Act Accountability and Portability Insurance Health 2. 

REVOCATIONS FOR LIABILITY ON CASES .IV

ERRORS SUPERVISION OTHER .V

?PROGRAMS TREATMENT TO RIGHT ENFORCEABLE AN HAVE OFFENDERS DO .VI

VIOLATIONS REPORTING .VII

COLLECTIONS RESTITUTION .VIII

 WHEN WARNINGS MIRANDA OFFENDERS GIVE OFFICERS PROBATION SHOULD .IX

?QUESTIONS ASKING

SUPERVISION OFFENDER ADULT FOR COMMISSION INTERSTATE .X

SUMMARY

NOTES

81

Supervision

6 Chapter

83

INTRODUCTION

 .risen has offenders of supervision improper for officer field a for liability potential the years the Over

 ,offender the regarding information of disclosure improper of concerns common more the Besides

 of collection the from arising responsibilities fiduciary and ,seizures and searches of validity the

 issues liability regarding concern increasing an been has there ,offenders from payments monetary

 not ,circumstances certain Under .offenders of supervision negligent or improper the from arising

 a assert potentially may crimes of victims even but officer an against suits civil file offenders may only

.issues these examines chapter This .officer an against claim civil

SEIZURE AND SEARCH .I

 probation on either supervised being are who persons of seizures and searches conducting of etypropri the examined periodically has Court Supreme States United the decades several last the For

 of types these regarding issues some resolved has Court the decisions these of each In .parole or

 have and ,decisions subsequent in addressed be to issues some open left ,seizures and searches

 issue to courts state required has ,turn in ,This .unresolved be to continue that issues new generated

 Finally .unanswered left have decisions Court Supreme States United that gaps the in fill to opinions

 to training provide must and law of area this in developments new of aware be must agencies bationpro and parole such As .law the of area evolving an be to continues and complex remains topic this

.basis going-on an on officers their

Case Leading the Is Wisconsin .v Griffin .A

:provides amendment fourth The

 upon but ,issue shall Warrants no and ,violated be not shall ,seizures and searches reasonableun against ,effects and ,papers ,houses ,persons their in secure be to people the of right The

 be to place the describing particularly and ,affirmation or Oath by supported ,cause probable

.seized be to things or persons the and ,searched

 and searches warrantless whether concerning issue the with grappled had courts various years For

 States United the that 1987 until not was it However .cause probable than less of standard a on edconduct be could searches whether and parolees and probationers on performed be could seizures

 .rights amendment fourth involving area this examined Court Supreme

,1Wisconsin .v Griffin In

 resisting of convicted was ,conviction felony prior a had who ,defendant a 

 defendant the While .probation on placed and officer an obstructing and ,conduct disorderly ,arrest

 had defendant the that detective a from information received officer probation a ,probation on was

 felon convicted a by firearm a of possession of offense the of convicted was defendant the ,quentlyConse .apartment the at handgun a reveal fact in did search warrantless A .apartment his in gun a

.prison in years two to sentenced and

 and Health of Department State the of custody the in placed were probationers law Wisconsin Under

 to officer probation any permitted regulations s’department the of One .department the by lishedestab regulations and rules and court the by set conditions to subject made and Services Social

 as long as and approved supervisor his as long as warrant a without home s’probationer a search

 probationer the that item any including ,contraband that believe to” grounds reasonable “were there

 reasonable constituted what determining in consider should officer an factors what forth set ulationsreg the ,Finally .premises the at found be would ,conditions probation the under possess not could

 the of fruits the that and ,reasonable was itself search the that ,search the conduct to order in saryneces not was warrant search a that ruled court trial the hearing suppression the During .grounds

.trial the in evidence as admitted be could search
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

84

 in necessary was warrant a whether were Court Supreme States United the before issues The

 search the whether and apartment s’probationer the of search a conduct to officials the for order

 The .Constitution States United the to amendment fourth the of purposes for” reasonable “was itself

 s’amendment fourth the by protected was ,s’else anyone like ,home s’probationer a that noted Court

 these under search a that held Court the ,However” .reasonable “be must searches that requirement

 s’state the that found Court The .warrant a to pursuant made be to need not did circumstances

 that enforcement law normal beyond” needs special “presented system probation a of operation

 probationers of supervision the that and requirement warrant usual the from departures justify could

 to order in warrant a obtain to need the with dispensed that state the of” need special “a constituted

.home s’probationer the of search a conduct

 supervise to need special the that stated Court The .cause probable on based be search a that mentrequire the from departure a justified state the of needs special these that found further Court The

 the of Because .probationer the of privacy the upon infringement of degree a permitted probationer a

 standard cause probable the replace to state the for proper was it ,system probation the of nature

 Supreme the ,Moreover .search the justifying for test the as standard” grounds reasonable “a with

 reasonable “federal a on based not was” reasonableness “of determination a that stated Court

 search the that finding s’court state a by determined was reasonableness Instead .standard” grounds

 the that found court state Wisconsin the Since .state the by issued regulations the to conformed

 held Court Supreme the ,probationers governing regulation valid a to pursuant made was search

 fourth the of meaning the within reasonable was residence s’defendant the of search the that

.amendment

 that matters other uncertain left Court Supreme the ,parolees and probationers of searches rantlesswar conducting of legality the regarding questions several resolved decision Griffin the Although

 constituted what define not did Court the ,searches warrantless conducting for standard ablenessreason a recognized Court Supreme the although ,First .consideration further for open remained

 in courts the by determined be must reasonableness that held Court the ,Instead’ .reasonable‘

 rise gave suspicion of level what determining with struggled since have courts Thus .states individual

 .parolee or probationer a of search warrantless a justifying for standard reasonable a to

 permitting question in regulations s’Wisconsin that found Griffin in Court the although ,Second

 of lieu in ,condition imposed-court a whether address not did Court the” ,reasonable “were searches

 Finally .reasonable be would parolees or probationers of searches permitting ,regulation express an

 only whether or parolee or probationer a of search independent an conducting for condition or ,tionregula ,statute a on rely could officers enforcement law whether issue the address not did Court the

 the conduct could ,officer enforcement law a by accompanied or alone either ,officer supervision a

 .search

 Left Questions the of Many Answers Knights .v States United .B

Wisconsin .v Griffin by Unaddressed

 United in 2001 in late addressed finally were Wisconsin .v Griffin in open left issues the of Several

.2Knights .v States

 state California a by probation on placed been had defendant the ,case this In 

 required was he ,probation s’defendant the of condition a As .possession drug of offense the for court

 any at search to effects personal] and [,vehicle ,residence of place ,property ,person his submit “to

 officer probation any by cause reasonable or arrest of warrant ,warrant search a without or with ,time

 Pacific to belonging vault telecommunication a and Company Electric and Power Pacific the to ingbelong transformer a ,probation on placed been having after days Three” .officer enforcement law or

 suspected was defendant The .damages in million $1.5 approximately causing ,vandalized were Bell

.vandalism of acts the committing of
Supervision

6 CHAPTER

85

 that aware ,officer police A .apartment s’defendant the of surveillance a conducting began police The

 s’defendant the of search a conducted also ,defendant the on imposed been had condition search a

 of possession for ,arson commit to conspiracy for court federal in indicted was defendant the and espremis the on devices explosive found officer police The .warrant a obtaining first without residence

.ammunition of possession in felon a being for and ,device destructive unregistered an

 .apartment his of search the of result a as seized evidence the suppress to moved defendant The

 nevertheless ,search the conducting for existed suspicion reasonable that finding ,judge district The

 “investigatory “for conducted was search the that grounds the on motion s’defendant the granted

 Appeals of Court Circuit Ninth States United The .purposes” probation “for than rather purposes

 ,issues two with confronted was Court Supreme the Thus .judge district the of ruling the upheld

 reasonable by supported and condition probation a to pursuant conducted search a whether :wit-to

 Fourth the whether and Constitution States United the to Amendment Fourth the satisfied suspicion

.only purpose aryprobation a with those to condition probation a to pursuant conducted searches limited Amendment

 on ,assessing by “determined was search a of reasonableness the and ,reasonableness was mentAmend Fourth the of touchstone the that noted first Court Supreme the ,issues these analyzing In

 ,hand other the on ,and ,privacy s’individual an upon intrudes it which to degree the ,hand one the

 Court The” .interests governmental legitimate of promotion the for needed is it which to degree the

 of goals primary two furthered condition this that noted also Court the Nevertheless .privacy of tionexpecta reasonable s’defendant the diminished significantly condition particular this that recognized

 .violations criminal future from society protecting and rehabilitation – probation

 observed Court Supreme the ,government the of that and individual the of interests the balancing In

 enjoyed freedoms certain of individual the deprived already probation on person a of status the that

 violators apprehending in interest s’State the that stated Court the ,Moreover .citizens abiding-law by

 factors the that stated Court the Thus .citizens ordinary on not did it that way a in probationers on cusfo justifiably could enterprises criminal of victims potential protecting thereby and law criminal the of

 of interests privacy diminished the outweighed greatly State the of interests legitimate the favoring

.probationer the

 Fourth the considerations various these balancing when that concluded Court the ,Therefore

 s’probationer the of search a conduct to suspicion reasonable than more no required Amendment

 a of searches allowed that factors balancing same the that held further Court the ,Moreover .house

 warrant a obtain to need the with dispensed also cause probable than less of basis a on probationer

 been had condition search a as long as that stated Court the ,Finally .search the conduct to order in

.purposes enforcement law for solely or purposes tionproba for conducted was question in search the whether matter not did it ,probationer a on imposed

 holding s’Court Supreme the in unaddressed left been had that matters several resolved opinion This

 well as court the by imposed condition a on based be could search a that affirmed Knights .Griffin of

 .probationer a of) person the presumably and (premises the search to authorized were ,officers tionproba with along ,officers peace that held Knights ,addition In .regulation agency an to pursuant as

 appellate federal and courts state certain by enunciated notion the with dispensed Court the ,Finally

 “probationary “for be to had supervision of condition a to pursuant conducted search the that courts

.purposes enforcement law or” investigatory “independent for not and only purposes

 the surrounding questions the of all resolved finally not had still decision Knights the Nevertheless

 Supreme the although ,example For .parolees and probationers of searches conducting of propriety

 be not need probationer a of search a conducting for standard the that stated clearly had Court

 Thus .applied be to had” reasonableness “of standard the how determine to yet had Court the” ,cionsuspi reasonable “constituted what define must courts state that and cause probable on based
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

86

 conducting for suspicion reasonable been had there that assumed Knights in Court the although

 been had standard the whether clear not was Court the ,apartment s’defendant the of search the

 the whether or ,condition search a imposed had judge the that fact the by simply inferred was” nessreasonable “whether ,officer police the of attention the to brought facts independent by established

 not did parties both because” reasonable “was search the that fact the on decision its premised Court

 .appeal on matter this contest not did thus and search the of reasonableness the question

 Searches for Standards Separate Two Creates California .v Samson .C

Parolees and Probationers of

 an been had it ,probationers on imposed conditions search with dealt Knights and Griffin Although

 equally apply would decisions these that ,courts appellate all not if ,most by assumption underlying

3California .v Samson in Court Supreme the by rendered decision a Nevertheless .parolees to

 proved 

 Department Police Bruno San the with officer police a case this In .incorrect be to assumption this

 After .warrant parole outstanding an had believed officer the whom parole on individual an stopped

 nevertheless officer the ,apprehension his for warrant a have not did individual the that determining

 that parolee the on baggie plastic a found officer The .person s’individual the of search a conducted

 to appeal an perfected eventually parolee The .prison in years seven to sentenced and phetaminemetham of possession of convicted subsequently was parolee The .methamphetamine contained

 in suspicion of basis no was there since that argued parolee The .Court Supreme States United the

 to pursuant seized evidence the therefore and unreasonable was search the ,search the conducting

.suppressed been have should search the

 required which statute a had California of State the that noted ,matter this resolving in ,Court The

 without or with and warrant search a without or with . . . officer peace other or officer parole a by zuresei or search to subject be to writing in agree “to parole state on release for eligible prisoner every

 of intent the not is it “that provided statute penal California a that noted further Court The” .cause

 of purpose sole the for searches conduct to officers enforcement law authorize to Legislature the

 searches” harassing or capricious ,arbitrary “prohibited had law case California that and” harassment

.parolees and probationers of

 probationers between distinction important very a made Court Supreme the matter this deciding In

 parolees “,punishments imposed-state of continuum a on that observed Court The .parolees and

 imprisonment to akin more is parole because ,probationers than privacy of expectations fewer have

 possible of continuum the on that reasoned Court the Hence” .imprisonment to is probation than

 average the of less even enjoyed parolees thus and” medicine “stronger the was parole ,punishments

 to subject be could they and alone status their of virtue by privacy of expectations diminished verelyse had parolees that concluded Court the such As .probationers did than liberty absolute s’citizen

.suspicion individualized of need the without searches

 :wit-to ,Knights in unresolved left question the answered also have may Court the ,suspicion alizedindividu of need the without parolee a on conducted be could search a that Samson in holding By

 on based be must condition search a to pursuant conducted probationer a of search a whether

 two created has Court the that conclude arguably can one Samson Under .suspicion individualized

 of wording the if Even .parolees and probationers of searches conducting for standards different

 statutory identical on based be even and situations both in identical be might condition search the

 be must probationers of searches that implied has Court the that appears it nevertheless ,language

 do parolees of searches while suspicion individualized hence and suspicion reasonable on based

.4so be to need not

 this that appear would it Samson in reasoning s’Court the follows one if Moreover 

 condition search a imposed has judge the that fact the by inferred simply not and officer an of tionatten the to brought facts independent the of totality the on based be must suspicion individualized
Supervision

6 CHAPTER

87

 a of search a conduct to sufficient be will itself of and in condition search a of imposition the whereas

.parolee

 most that observed Court the because anomaly an of something be may case this ,Nevertheless

 based be to release of condition a to pursuant conducted search a require country the in jurisdictions

 and law State Consequently .not does statute California the whereas suspicion of level some on

 against right the guaranteeing constitution s’State own its of interpretation s’court State a especially

.5matter this control still may residents its of seizures and searches improper

 necessary is it such As 

.issue this deciding in law state on rely that decisions court certain examine to

 Searches Conducting of Scope the Concerning Holdings State .D

Parolees and Probationers of

 to pursuant conducted search a approving Griffin in holding Court Supreme States United the Since

 states of minority small a ,Nevertheless .parole of board or court a by imposed condition a or lationregu a either to pursuant conducted search a approved have courts numerous ,regulation state a

.6parolees and probationers on imposed conditions search warrantless of disapprove still

 Moreover 

 Finally .order court a to pursuant conducted search a of scope the limited have jurisdictions several

 the regarding contention any waives parole or probationer a that held have courts appellate some

.search the to consents voluntarily person the if search the of propriety

.7probation granted was eroffend the which for offense the to tailored be must condition search a that held have courts Some

,8Hale .v People In  negligent criminally of convicted was defendant the 

 The .intoxicated was defendant the when accident boating a in woman a killed having after homicide

:that was agreed defendant the which to tionscondi the of One .probation on placed was and agreement bargain plea a into entered defendant

 under legally is abode of place such where abode of place and vehicle your of search permit you“

 be to search such ,found drugs illegal or/and implements narcotic any of seizure and ,control your

“.agent his and Officer Probation a or Officer Probation a by conducted

 that information received officer probation s’defendant the ,period probationary the into months Ten

 defendant the by accompanied ,officer probation The .home his at drugs dealing was defendant the

 and drug on indicted subsequently was defendant The .scale a and ,drugs illicit ,shotguns ,rifles ereddiscov authorities the search ensuing the In .house s’defendant the entered ,officers police by and

 exigent ,warrant search a absent that appeal on argued defendant the Although .charges weapons

 the ,Officer Probation a by searched be not could home his ,consent voluntary a or ,circumstances

 greater not if ,great as carried condition imposed-court the that stated nevertheless court appellate

.conviction the upheld court appellate the such As .regulation a as weight constitutional

 some ,condition imposed-court a to pursuant conducted search a approve may court a though Even

 drug and substances illicit as such items certain to search a limited nevertheless have jurisdictions

 of example good a is decision Hale The .devices oriented sexually or pornography or paraphernalia

 the ,addition In .drugs ,namely ,item specific a to condition search a limited court the which in case a

 of type another ,item specific a for search a conducting of course the in ,if that shows decision Hale

 subsequent a in used and seized be may contraband of type other the ,discovered is contraband

 .proceeding criminal

 conditions search certain imposing of propriety the examined have courts appellate some ,Moreover

,9State .v Phillips In .vague or overbroad being of grounds the on

 ,him ordered court the and probation granted was defendant The .offenses property of counts tiplemul of convicted was defendant the 

 .abuse substance with dealing instructions special certain with comply to ,probation to condition a as

 appeal on court appellate The .overbroad was condition the that appeal on argued defendant The

 .abuse substance of history s’defendant the of evidence substantial included record the that noted
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

88

 for searches warrantless authorized that probation of conditions that observed further court The

 such As .condition the for basis specific-case a was there where allowed been had alcohol and drugs

 substance where condition a such of imposition s’court sentencing the approved court appellate the

 the further could alcohol and drugs for searches that suggested background s’defendant the in abuse

.10rehabilitation s’defendant

.11search the conducting for] basis reasonable [a have to and warrant a obtain to need the of mentrequire constitutional the to exception recognized-well a is search a of conducting the to Consent

 search a conduct to need the with dispensing of context the to exception this extended have Courts

 the on based conducted search a Nevertheless .12suspicion reasonable on based probationers of

 of scope the by limited is search the of extent the if invalid be still may probationer a of consent

 may voluntary is that consent ,Moreover .13scope that exceeded search the and given consent the

 or illegality official the of exploitation from derives consent the if suppression in result nonetheless

 Oregon an ,14Tyler .v State in Thus .consent to decision the affects significantly that conduct police

 that show also to had It .consent voluntary show simply not could state the that held court appellate

 from nor defendant the affected significantly that conduct police from neither derived was consent the

.knowledge obtained unlawfully of exploitation the

Search a Conducting for Reasonableness of Standards State .E

 allow that states the ,Wisconsin .v Griffin in decision s’Court Supreme States United the Since

 a than less is that standard reasonableness a adopted have 15parolees and probationers of searches

 the of words exact the Nevertheless .17release of condition a ,violate to about is or ,violating is tionerproba or parolee the that believe to cause reasonable has officer parole/probation a whenever matelegiti is search warrantless a that is” reasonable “of definition general A .16standard cause probable

18Anderson .v People in ,example For .same the is result the but ,state to state from vary test judicial

 believe to” grounds reasonable “had officer parole the where approved was search warrantless a

 .v State In” .suspicion reasonable “was 19Santos .v People in language The .violation a been had there

 circumstances the of totality the that say often they ,approach this apply courts When” .manner ablereason “was it ,21Sievers .v State in and” suspicion arouse to information sufficient “was it ,20Williams

 the that means This .22probationer a as status s’party complaining the including ,considered be must

 of member a of case the in than less is taken be can action before required information of amount

 .public general the

 search warrantless a that holding in unanimous almost are country this across courts Nevertheless

 general the Thus .authorization legal express some on based be must parolee or probationer a of

 or ,regulation ,condition express an absent conducted be cannot searches warrantless that is rule

.23searches such conduct to authority the officer peace or officer supervision the gives that statute

 Without .California .v Samson in holding s’Court Supreme the after true remains rule general This

se per be will search the ,parolee or probationer a of search a conduct to authorization legal some

 .unreasonable

 law by parolees and probationers of searches investigative allowed have which ,courts state iforniaCal the Even .24individual that of search a justify to insufficient is release his of conditions the latedvio has probationer a that hunch mere a that held have jurisdiction every almost in courts Moreover

 anonymous on based be cannot suspicion reasonable that held generally have courts appellate overMore .25harassing or ,capricious ,arbitrary be cannot search a that held have ,officers enforcement

 probation because ,Finally .26evidence independent by corroborated or verified not either are that tips

 of condition a of violation in is probationer a that suspicion reasonable on based be must searches

 The .27searches random disallowed has issue the examined have that courts all almost ,probation

 for computers of searches suspicionless and testing drug random that are rule this to exceptions only

.28appeal on upheld been have pictures or graphics oriented sexually
Supervision

6 CHAPTER

89

Probationers of Searches Conducting to Pertinent Still Issues .F

 the premises the on lawfully once because useful be may condition a such Nevertheless .29ditioncon search a into converted be cannot parolee/probationer the of home the visit to condition A

 the to exception some activates that information) senses other through detect or (see may officer

 may officers enforcement law that established well is It .amendment fourth the of requirement warrant

 or intrusion initial the make lawfully must officer the) 1 :met be must prerequisites two ,attach to mentrequire warrant the to exception view plain the For” .view plain “in found evidence incriminating seize

 that fact the) 2 and; premises the on be lawfully or item the view to position proper a in be otherwise

.30apparent immediately be must evidence discovered has officer the

 or probation to apply also cannot doctrine this why reason constitutional no is there ,agents mentenforce law to applied have doctrine view plain the recognizing decisions court all almost Although

 parolee or probationer the of residence the at legitimately is officer the that Provided .31officers parole

 child or sofa a on drugs as such ,view plain in evidence incriminating other or contraband sees and

 or warrant a of need the without seized be can evidence this then ,table coffee a on pornography

 its report instead or contraband this seize to attempt to wise is it Whether (.justification legal other

 probation individual an by controlled be must warrant a of issuance the for enforcement law to finding

 .(procedures and policies’ authorities parole or

State is search a and visit home a between difference the discussed that decision court recent One

 driving a for Montana in years two for probation on placed was defendant the case this In .32Moody .v

 the appealed defendant The .officer peace a assaulting of offense an and offense intoxicated while

 and Probation the for available and open home the make “to her requiring condition a of imposition

.residences’ probationers of searches to standard cause reasonable the edviolat condition this that appeal on argued defendant The” .policy by required as visit to Officer Parole

 of condition imposed commonly a were visits home that recognized Montana of Court Supreme The

 expectation reasonable a have not did probationer a that determined court the Moreover .probation

 of expectation reasonable a Because .visit home a conducted officer probation a when privacy of

 as search a constitute not could visit home a that concluded therefore Court the ,exist not did privacy

.33Amendment Fourth the under understood

 could officer probation a ,search a not was visit home a because that observed further court The

 into turn to potential the had visit home a while that noted court the Furthermore .belongings s’tionerproba the through rummage officer the could nor; like the or ,closets ,cabinets ,drawers open not

 a of parameters the within remain to had it ,observations view plain s’officer an to pursuant search a

 held court the such As .search a in engage to cause reasonable was there until or unless visit home

 a serving person convicted a supervising of element reasonable and routine a as ,visits home that

 cause reasonable the to subject not thus were and searches not were ,release supervised of term

.standard

Officers Parole/Probation with Conducted Searches Police 1.

California .v Samson and Knights .v States United in holdings the if be would it simpler much How

 could officers police that stated clearly Knights example For .officers probation of presence the outwith or with probationers of searches conducting officers police of problems the resolved completely

 investigatory for and officer probation a of presence the without probationers of searches conduct

 law a that reaffirming while ,decision Samson the discussed previously as Moreover .only purposes

 threshold higher a indicated also decision this ,condition search a enforce could agent enforcement

 to opposed as probationer a of search a conducting to objection Amendment Fourth a overcoming for

 assistance the without or with probationers of searches police of analysis an Nevertheless .parolee a

 laws State .principles constitutional federal under solely performed be cannot officer probation a of

 .account into taken be also must considerations constitutional state and
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

90

 This .officers supervision to probationer a of search a of conducting the limit may states some Thus

 other Nevertheless .34statute state specific a by or decisions court state on based be may limitation

 to personnel enforcement law of aid the enlist may officer probation a that recognized have states

 a not and related-probation is purpose primary the that limitation the to subject ,35search a expedite

 allowed is officer police a ,situation this Under .goal enforcement law general more a for subterfuge

 the accompanying officer police the of purpose the if parolee/probationer a of search the in assist to

 held have states other ,Moreover .officer supervision the to protection provide to is officer supervision

 proper the to necessary is search the believes she or he if request the accommodate may officer tionproba the ,search to power her or his exercise to officer probation a induce to seek police the if that

.36system probation the of functioning

 supervised being was defendant the that period the during case this In .37Jones .v State is orationcollab officer police/probation in boundaries proper the discussed that decision court recent One

 the that information had he that officer parole s’defendant the informed detective police a parole on

 officer parole the told officer police The .girl old year fourteen a with involved sexually was defendant

 love and himself of photographs nude girl the given had probationer the that knowledge had he that

.notes

 defendant The .residence s’defendant the to went officer parole the officers police by Accompanied

 behind door the locked and closed and living was he which in house the in room the of out came

 surveyed and room the entered officers police the After .door the open to called was locksmith A .him

 of allegedly ,photos nude ,items other among ,discovered officer parole the search her During .mentinvolve police without search the conducted and herself by room the entered officer parole the ,it

 this of introduction the of result a As .letters love and ,clothing female ,victim old year fourteen the

 a of assault sexual degree-second of convicted was defendant the trial subsequent a in evidence

.38offender repeat a as punished and child a of exploitation sexual and child

 police a instead was but ,search probation a not was room his of search the because pressedsup been have should search the in seized evidence the that appeal on argued defendant The

 that concluded ,matter this reviewing ,court appellate The .warrant a required therefore and search

 court The .search police a not and search probationary a was room s’defendant the of search the

 not also was search probation a that stated court the Moreover .search police a into search bationpro a transform not did enforcement law and officer probation a between cooperation that noted

 law by provided was search the to leading information the because search police a into transformed

 a into transformed not was search probationary a that observed court the addition In .enforcement

 facts the that stated court the Finally .investigation concurrent a of existence the to due search police

 and purposes protective for residence s’defendant the at present were officers the that demonstrated

 .agents probation and enforcement law between cooperation of example recognized a was this that

 their exceed not did case this in participation police the that concluded court appellate the such As

.search the conducting officer the for protection providing of role

 Parole/Probation a Directing by or Alone Officers Police by Conducted Searches 2.

Search a Conduct to Officer

 ,alone acting ,officer police a that held had courts most ,Knights .v States United of decision the Until

 been has search warrantless a because simply suspect a of search warrantless a conduct not could

 had jurisdictions of minority a Nevertheless .probation of condition a as offender the on imposed

 supervision a of presence the without probationers of searches conduct to officers police allowed

 fourth his” waive “to defendant the requiring release of condition a was there that provided officer

 .juvenile the on marijuana of bag a discovered police The .game football a at members gang pectedsus with congregating juvenile a searched officers police ,39Tyrell re In in Hence .rights amendment

 his of search the allowing condition a with probation on was juvenile the ,police the to Unbeknownst

.person
Supervision

6 CHAPTER

91

 the of search the authorize to sufficient was condition this that held Court Supreme California The

 conducted was search the when present was officer probation no though Even .police by juvenile

 the of aware less much ,probation on was juvenile the that unaware were police the though even and

 general a as “that stated Court The .reasonable was search the that held Court the ,condition search

 by intrusions certain rendering thereby ,privacy of expectation reduced a have probationers ,rule

 governmental legitimate by necessitated are intrusions such that extent the to least at ,concepts alconstitution traditional under invalid be would otherwise which’ reasonable ‘authorities governmental

 in holding recent the of light in that is certain reasonably is What .predict to hard is future the in tionsjurisdic most for holding majority a becomes Tyrell re In in holding minority the Whether 40”.demands

 the to restrictions greater provided that holdings past reexamine will jurisdictions state many ,Knights

.probationers of seizures and searches unreasonable against right Amendment Fourth the of tioninterpreta its in Court Supreme States United the by provided been has than probationers of search

 a whether concerning uncertainty some was there ,Samson and Knights in holdings the to Prior

 hence and officer police a to authority supervisory delegate could officer parole/probation a or court

 certain While .officer parole/probation a of that into officer enforcement law a of status the change

 enforcement law to authority the extended that conditions search approved had decisions court

 deemed had courts most ,41parolees or probationers of searches warrantless conduct to officers

 officers supervision” assisting “were ,searches these conducting when ,officers enforcement law that

 notion the between differentiating In .officer supervision a of role the assuming not were hence and

 had courts ,role s’officer supervision the assuming to opposed as officer supervision a assisting of

 search the whether ,42search the initiated or authorized officer supervision the whether on focused

 a was search the whether and ,43parole or probation of goal legitimate a to pursuant conducted was

 courts most ,Moreover .44parolee or probationer the of investigation criminal a conducting for pretext

 ,probationer a of search a conduct officer probation a that requests officer peace a if that held have

 the supervising duties s’officer the with accordance in reason and basis a have must officer that

 blurred now have Samson and Knights in holdings the While .45search a conduct to order in offender

 is officer police the if officers supervision for liability less is there ,rule general a as ,distinctions these

.officer enforcement law the assisting is officer supervision the if than officer supervision the assisting

 furnished information on acts officer probation a when that held have courts appellate certain ,Finally

 tipped “police after home s’probationer a searched officers probation ,46Delaware .v Culver In .tionerproba a of search a conduct to exists suspicion reasonable whether determine to order in mationinfor the of analysis independent an conduct to duty a has officer that ,agent enforcement law a by

 contacted police The .activity drug in involved was he that suspected they that officers probation” off

 clear it made” tip “whose person anonymous an from call a receiving after department probation the

 .activity drug illicit with consistent probationer the about information personal no had caller the that

 but drugs any find not did officers probation the ,home probationer the of search a conducting While

.kit detoxification a and revolver a find did

 any lacked ,speculative entirely was tip s’caller anonymous the that appeal on argued defendant The

 the form not could police the by officer probation the to tip relayed the therefore and ,corroboration

 Supreme Delaware The .home s’probationer the of search a conduct to suspicion reasonable of basis

 callers anonymous for vouching officers police on rely not could officers probation that stated Court

 that stated court the ,Instead .information reliable ,credible supplying for record track proven no with

 s’caller the from drawn be to inferences the of reasonableness the assess objectively and pendentlyinde can officers probation the that so facts sufficient officers probation provide must officers police

 .own their on act to authority lawful no had police the when used conveniently ,police the for gatessurro essentially officers probation make would otherwise hold to that stated court the Finally .tip

 might probationer the that suspicion reasonable having for basis independent no was there Because

.defendant the of conviction the reversed court the ,probation his of conditions the of violation in be
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

92

FIREARMS AND OFFICERS PAROLE/PROBATION .II

 been has decades two last the over supervision parole and probation in development significant A

 and system federal the Although .country the of parts some in officers parole/probation of arming the

 the ,s1990 the to prior weapons carry to officers parole/probation authorized have states other few a

 since markedly grown has officers their arming of ranks the joined have that jurisdictions of number

.47officers probation juvenile of arming the even included now has officers of arming The .time that

 of all of aware be must only not now who officers of concerns liability the increased has ,turn in ,This

 the of consequences legal the of aware be also must but laws parole and probation of nuances the

.force deadly of use

 overcrowding with ,First .circumstances several from results officers parole/probation of arming The

 more and more divert to pressure the and decade last the during prisons s’nation the in problems

 periods longer served previously had or prison to sentenced been traditionally had who offenders

 offenders serious or” hardened “more contain now loads case parole and probation ,confinement of

 has jurisdictions many in departments parole and probation of mission the ,Second .before than

.protection-self armed for need the underscored have officers parole/probation and agents forcementen law between efforts collaborative greater ,Finally .protection public to rehabilitation from changed

 a for order in ,First .factors several on depends armed is officer parole/probation a not or Whether

 allowing authority statutory or legal state be must there ,armed be to officer parole or probation state

 ,court local the ,officers of arming the authorizes law state if even But .weapon a carry to officer that

 .jurisdictions most in authorities supervisory the with discretionary is firearms carry to officers ingallow or officers Arming .officers its arm to not elect may department supervision or ,parole of board

 departmental or regulations state ,weapon a carry to officers its allows jurisdiction a if even ,Finally

 such ,reasons of number a to due armed being from officer particular a preclude still may policies

 for or ,officer the of check background a in found information of because ,reasons psychological as

 .course certification weapons a pass to officer the of failure

 protecting :reasons two of one for so done have officers their arm to chosen have that Departments

 being officer an for justification the on differ laws State .enforcement law general and officers their

 defense-self for armed be to officers parole and probation adult its allows Texas ,example For .armed

 and probation that states ,hand other the on ,York New and Pennsylvania in law The .48only purposes

 them gives and duty on are they that period the during officers enforcement law are officers parole

.49release their of conditions the violating observed parolees and probationers arrest to powers broad

 the on depend may weapon a of discharge the from arising incident an for liable is officer an Whether

 officer the whether on and weapon a carry to law state by officer the to given authority the of extent

.authority that exceeded

 law a by weapon a of use the on cases court numerous are there but; officer parole/probation a by onweap a of discharge the from arising issues liability examining decisions court any hardly are There

 one ,officers parole/probation involving cases in arise would that and officers enforcement law volvingin lawsuits weapons of use in arise that issues legal in similarity the of Because .officer enforcement

.cases enforcement law examining by cases parole/probation for conclusions analogous draw can

 parole/probation a by weapon a of discharge the involving incident an in injured party a Although

 death wrongful state including ,acts claims tort’ states various the under lawsuit a file could officer

 provision This 1983. § .C .S .U 42 ,at codified law federal the by protected right constitutional a of tiondepriva a for claim a is weapon a of use improper the for action of cause common most the ,statutes

 redress obtaining of means a persons provide to order in Congress States United the by enacted was

 a ,Nevertheless .law of color under acting person a by caused right constitutional a of loss the for

 1983 § a in prevail to insufficient is right constitutional a of deprivation negligent of assertion mere
Supervision

6 CHAPTER

93

 gross or indifference deliberate indicated deprivation the that showing a be must There .50lawsuit

.51official government the of part the on negligence

 protected constitutionally a of deprivation s’person the of cause contributing a was subdivision icalpolit or supervisor the of action the if sued be can state a of subdivisions political and Supervisors

 to officers their allow to agencies and departments many by reluctance the for accounts This .right

 of use the in officers parole/probation of training sufficient of lack the ,example For .firearms carry

 failure the to extends properly train to failure This 1983.52 § under suit a for grounds be may weapons

 course the understood adequately officers the that ensure to failure ,53training continuous provide to

 of result a as injured is person a case in aid first on instruction provide to failure even and ,54material

.55weapon s’officer the of discharge the

 or arrest to attempting in force excessive use they if liable be may officers parole and Probation

 excessive of use the that held Court Supreme the ,56Garner .v Tennessee In .offender an apprehend

 under seizure unlawful an constituted crime a of suspect a arrest to) shooting a case this in (force

 could officer police a that stated Court The .Constitution States United the to Amendment Fourth the

 deadly said unless fleeing from suspect nondangerous unarmed an stop to weapon deadly a use not

 that believe to cause probable had officer the and escape the prevent to necessary were force

 In .others or officer the to injury physical serious or death of threat significant a posed suspect the

 parole/probation to applies rule same The .feasible where ,warning a give must officer the ,addition

.officers

 standard constitutional what examined Court Supreme States United the ,decision subsequent a In

57Connor .v Graham In .person s’individual the of” seizure “other or ,stop investigatory ,arrest an ingmak of course the in force excessive used officials enforcement law that claim s’person a governed

 when sustained allegedly injuries for damages recover to seeking lawsuit 1983 § a filed plaintiff the

 .stop investigatory an of course the during him against force physical used officers enforcement law

 him take to friend a asked had and reaction insulin an of onset the felt had ,diabetic a ,plaintiff The

 ,store the at arrived plaintiff the When .juice orange some purchase to store convenience nearby a to

 decided delay the about concerned and counter checkout the at customers of line long a saw he

 and store the of out and in going plaintiff observed officer police A .instead house s’friend a to go to

 needed he him told plaintiff the and matter the investigate to car the stopped He .suspicious became

 with encounter his of result a As .reaction insulin an having was he because house s’friend a to get to

 injured an and forehead bruised a ,wrists his on cuts ,foot broken a sustained plaintiff the ,police the

.shoulder

 observed ,force of use excessive an determined standard what examining in ,Court Supreme The

 most be should standard the ,stop investigatory or arrest an of context the in arising claim a in that

 the such As .Amendment Fourth the of protections the invoking one as characterized properly

 in–not or deadly–force excessive used had officers enforcement law that claims all that stated Court

 Fourth the under analyzed be to had” seizure “other or ,stop investigatory ,arrest an of course the

 “process due substantive “a under than rather ,standard” reasonableness “its and Amendment

 ‘officers the whether was question the :one objective an was case force excessive an in inquiry” nessreasonable “the ,contexts Amendment Fourth other in as that stated Court the Moreover .approach

 ,them confronting circumstances and facts the of light in” reasonable objectively “were actions

 test the because that stated Court the Finally .motivation or intent underlying their to regard without

 mechanical or definition precise of capable not was Amendment Fourth the under reasonableness of

 each of circumstances and facts the to attention careful required application proper its ,application

 immediate an posed suspect the whether ,issue at crime the of severity the including ,case particular

.flight by arrest evade to ingattempt or arrest resisting actively was he whether and ,others or officers the of safety the to threat
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

94

 considered be should rules following the ,firearms carry to allowed are officers where departments In

:minimized or obviated be to is liability civil if

 that to similar be should training that ,Ideally .must a is firearms of use the on training Proper■ 

.state the in officers enforcement law other or police to given

.officers enforcement law of required similarly those to programs education continuing larregu in participating includes This .weapon a carry to certified properly be should officers ,Ideally■ 

 be should use Such .force deadly of officers by use the on policy clear a set must department The■ 

 death of threat imminent an is there that believe to cause probable is there when cases to limited

 other of defense the for or defense-self for needed is force deadly and injury bodily serious or

.persons

 to allowed not are officers if sued be might itself agency the that departments some in fear is There

 best as but ,understandable is This .work their of course the in injured later are and firearms carry

 chances ,however ,filed if Even .issue this on far so court in filed case no been has there know we

 firearm a carrying that establishing difficulty have will officer the because remote be may success of

 part the on indifference deliberate of showing a be to have will There .injury the prevented have would

 decided be to have will showing this Although .imposed be likely can liability before department the of

 possibility the minimizing at aimed policy a has agency the if helps also It .indifference deliberate tuteconsti not should itself in firearm a carry to officer an allowing not merely ,basis case-by-case a on

 risky in that require can department the ,example For .risk undue of situation a in officer an placing of

 the undertake not and officers police of presence or assistance the ask should officer the ,situations

.officer parole or probation another of company the in only done be it that or ,alone job

TO NOT OFFENDER THE TO DUTY .III

INFORMATION DISCLOSE

 Despite .issues privacy and confidentiality to relates officers field of concern liability legal major A

 instances few a only actually are there ,officers among generates issue this anxiety widespread the

 does This .officer an against suit civil a for basis the been has confidentiality of breach the which in

 liability incur cannot officers that or officers for important not are issues confidentiality that imply not

 not has this that indicates it ,Instead .offender an regarding information of disclosure improper the for

 there therefore and awareness particular a had have past the in offenders which in issue an been

 heightened the of because Perhaps .matter confidential of breach a alleging claims few been have

 approach cautious a taken have traditionally officers ,confidentiality regarding have officers concern

.offender an concerning information with dealing when

 in that is issue liability a of less parolee/probationer a about information of disclosure makes What

 therefore and record public of matter a is parole or probation on is person a that fact the states many

 being juvenile a of disclosure if cases juvenile is this to exception possible only The .society of tectivepro is it that fact the by justified be might disclosure such ,Moreover .disclosure for liability no is there

.law case or statutory state by prohibited is parole or probation on

 be may what ,states most in record public of matter a is parole or probation adult on being Although 

 refers This .policy agency or law state upon depends and certain less much is that beyond disclosed

 referred been person the has) 2 ,probation on status s’person the is what) 1 :as information such to

 ,counseling offender sex or treatment abuse substance as such ,programs treatment certain to

 In .forth so and ,release of conditions the with complying successfully is person the whether) 3

.disclosed be not may therefore and record public of matters not are these ,states most not if many
Supervision

6 CHAPTER

95

:law tort state under liability and disclosure of issue the on opinion this gives ,however ,writer One

 certain proscribing employers to information of disclosure the as acts such that doubtful is It

 public from information of items reveal can officers Federal .tortious deemed be would employment

 .defamation of tort the from liability of free ,convictions or arrests prior of records as such ,records

 of items of disclosure ,privacy of invasion of tort the to As .defense complete a is truth since ,tiondefama for arise could liability no ,accurate is it if ,information the of source the of Regardless

 an is persons of number large a to information of release the ,Also .liability no creates record public

 of release the in lacking be would element that; privacy of invasion of tort the of element essential

 the to harm the outweighs disclosure the of purpose ultimate the if justified be can contract tiveprospec a or contract a with interference of tort the ,Finally .employer individual an to information

 third a or public the protect to employer an to information of disclosure impersonal The .plaintiff

.58justification of rule the within be to appear would party

 Idaho to record criminal s’plaintiff the regarding statements false repeated knowingly had dantsdefen the claiming ,officers parole against suit brought parolee plaintiff the ,59Boyd .v Anderson In

 a about information of dissemination that ruled court The .authorities police local and Officials State

 to deciding in duties’ officers parole the to relate not does board parole the outside persons to parolee

 ,most at; conduct such to extend not does immunity absolute ,Therefore .parole revoke or ,deny ,grant

.conduct alleged their for immunity faith good ,executive to entitled be would officers parole

 ,offender the about files correctional and records public from gleaned information to addition In

 such from information of dissemination the prevent to right a has offender the If .associates s’eroffend the and offender the from directly information receive frequently officers parole/probation

 event the in suit proper a in officer the from damages recover to able be she or he might ,sources

 for support law case ,Again .no is answer the apparently ,law general of matter a As? disclosure of

 that argument the of weakness the of indicative somewhat is itself in that but ,thin is conclusion this

 the between relationship the of nature the on hinges question The .liability support to made be must

.offender the and officer parole/probation

.60case criminal Washington 1976 a in made was relationship this of examinations closest the of One

 officer parole his from testimony hear not should court trial the that contended parolee a ,case that In

 no was there Because (.conversation telephone a during voluntarily made he statements concerning

 (.suppression required Miranda that successfully argue not could parolee the ,interrogation custodial

 confidential a is parolee and officer parole between relationship the that contended defendant The

 otherwise hold to that and ,privileged thereby were two the between communications all that ,one

:disagreed court The .system parole the by envisioned process rehabilitation the undermine would

 .supervised being individual the to secondly ,court the to is responsibility primary s’officer parole A

 would privileged is officer parole his and parolee the between communication each that hold To

 with crimes serious confess to parolee the allow and personnel supervising the of lips the close

.61impunity

 .testimony relevant for need significant a have courts ,prosecutions criminal in ,that noted be must It

—bounds traditional its beyond privilege of concept the expand to ,therefore ,reluctant are They

 ,different is context law civil the Although .wife-husband ,penitent-clerical ,patient-doctor ,client-lawyer

.confidential as treated be to relationship parolee/probationer-officer the expect to reason no is there

Communication Privileged ProbationerOfficer Probation No Is There Says .C Michael .v Fare of Case The .A

 to ,murder of suspected was who ,probation on juvenile a by request the .,62C Michael .v Fare In

 not was — police the by warnings Miranda the given been having after — officer probation his see

 Evidence .lawyer a for asking his to tantamount as Court Supreme States United the by considered
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

96

 instead officer probation his see to desire a expressed he after even ,juvenile the by given voluntarily

 issue the addressed also Court The .trial criminal subsequent a in admissible held was ,lawyer a of

:saying ,probationer juvenile a and officer probation a between information of confidentiality of

 of system the or accused the either to regard with posture same the in not is officer probation A

 the advise to position a in not is so and ,law the in trained not is he Often .]lawyer a [is as justice

 of representation the in skilled ,advocate trained a he is Neither .rights legal his to as accused

 on act to power the assume not does He .courts and police both before client his of interests the

 accused the of communications the are nor ,advisor as status this of virtue by client his of behalf

 probation the ,cases most In . . . privilege client-lawyer the by shielded officer probation the to

 if even ,attention his to comes it when juvenile the by wrongdoing report to bound duty is officer

63(added emphasis (.himself juvenile the from communication by

 the that believe to reasons strong are there ,probationer juvenile a involved case above the Although

 parolees/probationers ,therefore ,Constitutionally .well as cases adult to apply enunciated principles

 the of nature the if true especially is This .regulation agency or law state by prohibited be may closuredis ,however; officers parole/probation to given information of disclosure against right a have not do

.individual the of status health mental or physical the involves disclosure

 and access record public concerning policies administrative have agencies supervisory Some

 information certain releasing from officer an forbidding policy a establish may rules These .disclosure

 doing from officer an prohibits law other or statute no though even parolee or probationer a regarding

 general the supersede would information certain of disclosure the restricting policy agency An .so

 ,addition In .agency the by maintain information releasing from officer an prohibit would that policy cyagen applicable an is there whether determine should reader the ,Hence .here discussed principles

 familiarize thoroughly should officer parole or probation A .crime a of victim the to pertaining mationinfor of disclosure the restricting policies administrative or laws established now have states certain

 information of release the preclude that jurisdiction her or his in policies or laws with herself or him

.victim a to pertaining

Privacy of Invasion .B

 the involves information confidential of disclosure the to similar is that concern liability of area An

 private of disclosure the) 1 :are privacy of invasion an for elements the ,Generally .64privacy of vasionin an for action of cause a recognize ,states most not if ,Many .privacy of invasion tortious potential

 or secluded ,private be must public the to disclosed facts the) 2; disclosure public a be must facts

 of person reasonable a to objectionable and offensive be must public made matter the) 3 and; secret

 public a is that information of disclosure Although .65circumstances the under sensibilities ordinary

 .be may offender an about information personal highly certain of disclosure the ,privacy of sioninva an as actionable not is conviction criminal s’individual an regarding information factual or record

 probationer a though even ,example For .privacy of invasion the for suit a to rise give may visedsuper being offender the questioning while obtained information of disclosure improper the ,Thus

 s’individual the of invasion an be may still it ,offense sex a for supervised being be may parolee or

 such but ,itself of and in criminal not were life sex s’individual the about information this If .life sex s’eroffend the about information sensitive highly disclose to were officer parole or probation a if privacy

 ,individual that about disclosed were it if embarrassing highly find would person ordinary an that

 for responsible agency the if ,Moreover .privacy of invasion an constitute may disclosure such then

 that presumed be may it ,information such disclosing against policy a has offender the supervising

 would such of publication the that presumed be therefore and sensitive highly is information such

.privacy of breach a constitute
Supervision

6 Chapter

97

 to rise give may supervision during parolee or probationer a of questioning improper the ,Finally

 a have officers Although .individual the of privacy the upon intrusion unreasonable the for suit a

 under is who offender an questioning in leeway considerable given are and discretion of deal great

 or offender the of rehabilitation the on bearing reasonable a have must questioning the ,supervision

 a extensively question to were officer an if ,example For .release of conditions the of enforcement the

 questioning said ,practices or life sexual s’offender the about theft of convicted parolee or probationer

 behavior sexual s’offender the that indication no were there if especially ,improper deemed be could

 commission the to contributed had or individual the rehabilitate to efforts the with interfering was

 a though even Thus .parole granted or probation on placed was she or he which for offense the of

 preventing in interest an has still individual the ,crime a of convicted been has parolee or probationer

.life private her or his into intrusion unreasonable the

Slander and Libel .C

 or written a is Libel .slander and libel involves issues privacy upon touching concern of area Another

 her or him expose thus and person living a of reputation the injure to tends which defamation printed

 ,virtue ,integrity ,honesty her or his impeach or ,injury financial or ,ridicule ,contempt ,hatred public to

 person third a to published or communicated orally statement defamatory a is Slander .66reputation or

 demonstrate must plaintiff a defamation of case facie prima a establish To .67excuse legal without

 the identified statement defamatory the) 2; statement defamatory a published defendant the) 1 :that

 the) 4 and; person third a to published was statement defamatory the) 3; person third a to plaintiff

.68statement the of result a as injury suffered reputation s’plaintiff

 their if even and offense criminal a of convicted been have parolees and probationers though Even

 Thus .them protect still laws slander and libel ,community the in esteem high in held not is reputation

 false a as such ,parolee or probationer an about statement factual false a make to were officer an if

 of convicted person a or dealer drug a is embezzlement of convicted offender an that accusation

 for officer the against action an bring could offender the ,molester child a is intoxicated while driving

 is parolee or probationer a regarding accusations false making because ,Moreover .slander or libel

 an whether doubtful is it ,responsibilities job s’officer an of scope and course the within not clearly

 Hence .slander or libel for suit a to response in immunity official of defense the assert could officer

 the and verifiable and based factually be must offender an about makes officer an that statement any

.law state and policies department with consistent be must which of publication

Justified Is Disclosure if Contract a with Interference Tortious No .D

 Client Disclose to Failure for Liability See (.record criminal s’individual the about parolee or bationerpro a employing person a inform to need the see they which in situations face frequently Officers

 information disclosing for concern liability potential A) below ,Parties Third to Information Background

 contractual a with interference tortious the is supervision under offender an regarding employer an to

 a such establishing for elements The .employee her or his and employer the between relationship

 an) 2; expectancy or relationship business or contractual a of existence the) 1 :are action of cause

 the that proof) 3; expectancy or relationship that outside party a by interference of act intentional

 In .employee the about employer the informing for justification legal a is there if contract a with enceinterfer tortious no is there Ordinarily .69damages) 4 and; sustained harm the caused interference

 information of disclosure the if exist likely would justification legal ,supervision parole and probation

 .public the of safety the further or employer the of interests the protect would offender the concerning

 was ,dispensary a in working ,employee its that hospital a notifies officer parole or probation a if Thus

 agency or law state by prohibited is disclosure if ,however ,issue might Liability .public the and ployerem the of interests the protected disclosure said that grounds the on justified be would this ,mentembezzle of convicted been had tellers its of one that bank a notifies or offense drug a of convicted

.supervision parole or probation juvenile in case the is as ,policy
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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 is who employees her or his of one about employer an inform only should officer an ,Nevertheless

 the of direction the under or by established guidelines with accordance strict in supervised being

 circumstances no under should officer an ,Moreover .agency supervisory or ,parole of board ,court

 factual provide only should officer The .terminated be employee the that employer the to recommend

 need may she or he that aware employer the making of purpose the for employer the to information

 to left be should taken are that precautions The .employee the regarding precautions certain take to

.employer the of discretion the

Confidentiality of Rules Federal .E

 may states ,addition In .status health mental or physical s’individual an concerning information tectpro generally laws These .information confidential of disclosure the regarding laws has state Every

 may or may laws state These .nature in sensitive deemed information other protecting laws have also

 discusses only manual this Because .jurisdictions various in parolees or probationers to pertain not

 advisable is it ,whole a as nation the to applicability general have that matters parole and probation

.offenders to pertaining information of disclosure the for protections tionaladdi provide may laws local whether concerning advice legal seek to officer parole or probation a for

Treatment Abuse Substance Regarding Confidentiality of Rules Federal 1.

 requirements stringent has law This .treatment abuse substance or alcohol about information gardingre country the throughout confidentiality of right a creates ,circumstances certain under ,law Federal

 for penalties severe has and information abuse substance and alcohol of disclosure the allowing for

 criminal the in offenders to applies also law This .information of type this of disclosure improper the

 .rules alityconfidenti federal understand to officers parole and probation for important is it Thus .system justice

 federal of ambit the within falls provider treatment a if that provides -2dd290 § Code States United 42

 treatment alcohol and drug seeking patient any of identity the of confidentiality the then ,regulations

 regarding information receives who person any that provides law this addition In .70protected be must

 cannot facility regulated federally a in abuse alcohol or drug for treated being patient a of identity the

 for treated being parolees or probationers include” Patients “.authorization proper without on it pass

 probation a Thus .regulations federal to subject provider treatment a by problems abuse substance

 alcohol for treated being is offender an that acknowledging from precluded be may officer parole or

 abuse substance a in residing is who offender an of location the indicating or abuse substance or

.agency enforcement law or court a to even ,facility treatment

 a for treated being as person a identifying information of disclosure the allows only law federal This

 signs treated being person the if is One .exceptions narrow certain under problem abuse substance

 if is Another .parties certain to information treatment of disclosure the allowing consent informed an

 required is disclosure the and crime another of commission the for investigated being is offender the

 this of release the authorizing order court a procure to order in ,However .order court a to pursuant

 the compelling judge a by signed subpoena A .hearing court a be first must there ,information of type

 .sufficient not is information this of disclosure

 balance and offense alleged the of seriousness the consider must court the” cause good “find to deror In .information this disclosing for exists” cause good “that find must court the hearing court the At

 this keep to patient the of right the with information the disclosing in interest public and necessity the

 issued be will order an then ,disclosable information the deems court a If .confidential information

 a for treated being person the of identity the regarding information having individual the compelling

.authorities proper to information the reveal to problem abuse substance
Supervision

6 CHAPTER

99

 those only; law confidentiality federal this under come providers treatment abuse substance all Not

 receive who providers treatment ,Generally .do regulations federal to subject providers treatment

 federal to subject are ,payments Medicare through as such ,indirectly or directly either funding federal

 or probation a ,law federal this of breach a of seriousness the of because ,However .regulations

 treatment that of inquire should treatment abuse substance to offender an refers who officer parole

 .regulations federal to subject is it whether provider

(HIPAA (Act Accountability and Portability Insurance Health 2.

 Act Accountability and Portability Insurance Health the enacted Congress States United the 1996 In

 confidential is treatment care health s’person a regarding information that provides act This .)HIPAA(

 known ,act this of enforcement the for promulgated regulations the Nevertheless .patient the by cutedexe voluntarily waiver a through or act this in provided otherwise as except released be cannot and

 covered prohibits Rule Privacy The 2003. 14, April until effect into go not did ,Rule Privacy the as

 ,Moreover .71permits rule the as except information health protected disclosing or using from entities

 and civil provides HIPAA addition In .72preempted is Rule Privacy the to” contrary “is that law state a

.73violation its for penalties criminal

 services treatment include can circumstances certain under and construed broadly are entities eredcov ,HIPAA of application the limit to appear may this Although .provider care health a and ,houseclearing care health ,plan care health a is which” entity covered “a to applies only Rule Privacy The

 individually “encompasses Rule Privacy The .department parole or probation a through provided

 a is that information “is” information health identifiable Individually” “.information health identifiable

:and” ,individual an from collected information demographic including ,information health of subset

and; houseclearing care health or ,employer ,plan health ,provider care health a by received or created Is)1(

 the; individual an of condition or health mental or physical future or ,present ,past the to Relates)2(

 of provision the for payment future or ,present ,past the or; individual an to care health of provision

and; individual an to care health

or; individual the identifies That) i(

 to used be can information the believe to basis reasonable a is there which to respect With) ii(

.74individual the identify

 make must “information health protected requesting or ,disclosing ,using entity covered a ,Generally

 the accomplish to necessary minimum the to information health protected limit to efforts reasonable

 to entity covered a permits Rule Privacy The 75”.request or ,disclosure ,use the of purpose intended

 health protected of disclosures or uses certain to agree or authorize may individual an ,Also 76”.tionsopera care health or ,payment ,treatment own its for information health protected disclose or use“

 for information health protected disclose can entity covered a HIPAA under addition In .77information

:purposes following the

.services related any and care health s’individual the manage and ,coordinate ,provide To) a

.provided services the for payment obtain To) b

.operations care health s’entity the of function the facilitate To) c

.law local or ,state ,federal any by so do to required When) d

.health public to risk a is there When) e

.violence domestic or neglect ,abuse of victim the is patient a that believes entity the If) f
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

100

 ,civil; audits as functions such conducting in agency oversight care health a with cooperate To) g

.etc ,licensure ,inspections ,investigations criminal or ,administrative

 or court a of order an to response in proceeding administrative or judicial any of course the In) h

.78tribunal administrative

.purposes enforcement law for official enforcement law a To) i

 s’patient the of privacy the address to approved been have protocols research when research For) j

.information health protected

 or health s’patient the to threat imminent and serious a lessen or prevent to necessary When) k

.public the of safety and health the to or safety

.79laws compensation s’worker with comply To) l

 would office parole or probation a as such agency justice criminal a that appear may it glance first At

 provision the outsourcing were agency parole or probation the if ,Thus .entity covered a constitute not

 mental or abuse substance ,problems emotional for counseling as services rehabilitative such of

 appear would it then services these for entities outside to referrals making only or treatment health

 provided services including ,services treatment or counseling house-in providing were parole or tionproba the if However” .entity covered “a of definition s’HIPAA under fall not would department the that

 these then ,department probation a or agency parole a by administered is that setting residential a in

 the and” information health identifiable individually “of definition the within fall well might services

 the with complying of purposes for entity covered a be would department probation or agency parole

 agency parole the would only not then case the were such If .HIPAA under established requirements

 also would entity the but regulations s’Rule Privacy the follow to required be department probation or

.requirements s’HIPAA with comply to procedures and policies develop to have

REVOCATIONS FOR LIABILITY ON CASES .IV

 the seeking petition a filing in ,defendant the that found court The .officer probation a against tionerproba former a by brought action rights civil a on ruled court district federal a 80Schaeffer .v Hall In

 enforcement law official her to pursuant function discretionary a performing was ,plaintiff the of arrest

.immunity judicial-quasi to entitled ,therefore ,was She .officer probation a as duties

 against suit rights civil a examined 81Appeals of Court Circuit Fifth States United the ,case another In

 erroneous the to due probationer plaintiff a of arrest the caused mistakenly who officer probation a

 court The .plaintiff the ,fact in ,was plaintiff the as name same the with person a that assumption

 established an violated clearly conduct his where only suit to subjected be could officer the found

 the dampening without guarantees constitutional vindicate to need clear a was standard this for feredof rationale The .known have would person reasonable a which or right constitutional or statutory

 officer the that ruled court the ,Specifically .duties their of discharge the and officials public of ardor

.immunity derived-judicially to entitled not was and function adjudicatory an performing not was

 brought suit a heard Appeals of Court Circuit Ninth States United the ,82year same the in ,However

 of investigation pending holds parole nonbail consequent and arrests repeated claiming plaintiff a by

 the to related directly arrest to decision the found court This .violations parole of charges baseless

.immunity absolute by protected was ,therefore ,and parole revoke to decision

 suit Here .liability for bases other suggests 83Center Rehabilitation and Hospital Eagleville .v Jones

 to significance religious with cap skull a remove to refusal for revocation parole a after brought was

 provision a of result the be to appears decision that ,liability no found court the Although .plaintiff the

 the was case this in defendant The” .person “a to defendant proper a limits that 1983 § .C .S .U 42 in
Supervision

6 CHAPTER

101

 to yet have case this in facts the under liability of question the Thus” .person “a not and Board Parole

 .court a by resolved unequivocally be

ERRORS SUPERVISION OTHER .V

 to rise give could that circumstance only the not is so do to duty some is there where warn to Failure

 replete are responsibilities s’officer field a of range whole the in Deficiencies .parties third to liability

 Court Circuit Fourth the by decided ,84Institute Psychiatric .v Semler is example An .possibilities with

.liability in resulted which 1976, in Appeals of

 under action negligence a was case The .facts convoluted its of view in discussion full needs Semler

 who ,daughter her of death the for damages recover to Semler Helen by brought was It .law Virginia

 a abducting for prosecuted been had Gilreath .probationer Virginia a ,Gilreath John by killed was

 .,C.D ,Washington of Institute Psychiatric the entered Gilreath ,trial his Pending 1971. in girl young

 and treatment continued from benefit could Gilreath thought he that said doctor The .treatment for

 ,supervised a in was he as long as others or himself to danger a be to him consider not did he that

 Gilreath 1972, August In .Institute Psychiatric the at furnished was as such environment structured

 treatment continued s’Gilreath on conditioned ,suspended was sentence year20- His .guilty pleaded

.Institute the at confinement and

 state the ,request s’officer probation the and recommendation s’doctor the on ,later months few A

 the on again ,Subsequently .Christmas and Thanksgiving for family his visit to Gilreath allowed judge

 authorized he 1973 in early and ,passes additional allowed judge the ,doctor the of recommendation

 morning each hospital the to go could he that so patient care day a become Gilreath that mendedrecom doctor the 1973, May In .discretion his at passes weekend grant to officer probation the

 who ,judge the to recommendation this transmitted officer probation The .evening each leave and

.it approved

 moving of possibility the investigate to pass day3- a Gilreath gave officer probation the 1973, July In

 prepare to Ohio to return could he so pass day14- a Gilreath gave later officer probation The .Ohio to

 them discussing after trips these of each approved officer The .state that to probation of transfer a for

 the 1973, 29, August On .approval for judge state the to submitted was pass Neither .doctor the with

 that officer probation the wrote ,Ohio in probation for accepted be would Gilreath assuming ,doctor

.Institute the from discharged been had Gilreath

 19, September On .Virginia to return to him instructed who ,officer probation his to news this phonedtele Gilreath .transfer for application s’Gilreath rejected ,however ,authorities probation Ohio The

 not did doctor The .therapy additional have should he him told who ,doctor his visited Gilreath 1973,

 a nights two met that group therapy a in instead him enrolling ,status care day to Gilreath restore

 .helper s’bricklayer a as working ,alone later and home at lived first Gilreath ,patient-out an As .week

 .judge the to it report not did officer the but ,arrangement this about officer probation the told Gilreath

 on Gilreath to assigned was officer probation new a and promoted was officer the ,September late In

1973. 29, October on daughter s’plaintiff the killed Gilreath 1. October

 until confinement of requirement the that stressed court appeals the ,claim s’plaintiff the allowing In

 foreseeable a from ,girls young particularly ,public the protect to was court criminal the by released

 at harm of risk foreseeable reasonably the from public the protect to officer probation the and mentgovern the on duty a imposed order probation the by created relationship special The .attack of risk

 in $25,000 awarded was plaintiff The .recognized already had judge state the that hands s’Gilreath

.half-one for liable officer probation the with ,damages
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

102

 appears it ,Nonetheless” .law bad make facts hard “that states adage old An .doubtful is cases tionproba other to applicability its ,that of because ,and unique rather are case Semler the in facts The

 that from probationer the of status the changed effect in officer probation the that Semler in crucial

 gave officer probation The .judge the from authorization without outpatient an to patient care day a of

 have probably most would case the in result The .allowed order judicial the than liberty more Gilreath

 judicial a with accord in been doctor the and officer probation the of actions the had different been

 unless ,cases liability in defense valid a is court the of orders the out Carrying .defense immunity luteabso the of because liable be possibly not could himself judge The .died girl young the if even ,order

.unconstitutional or illegal patently are orders those

 preceding the in cases the from differs Semler which in way the of taken be should note Special

Faile of case the to akin more and chapter this in discussed cases liability other the Unlike .section

 of risk a that allege not did Semler in plaintiff the ,Justice Juvenile of Department Carolina South .v

 .public general the of member a simply was decedent The .foreseeable was daughter her to harm

 way different entirely an in it used it” ,relationship special “term the used court Semler the Although

 significantly are precedent Semler the of consequences potential The .cases other the in those from

.result a as worrisome more

 quite was Semler in liability defeated have might that conduct of kind the that noted be also should It

 the information ,status treatment present his was communicated not was What .background s’reathGil concerning facts the of all knew Semler in court state The .cases companion the from different

 breach unique a was there Semler in ,Finally .check in probationer the keep to used have might court

 could They .exercise to theirs not was that power themselves to arrogated they ,Gilreath about sionsdeci making in judge the involve to ceased officer probation and physician the When .factor orders of

.actions their of consequences the accepting also without this do not

 ENFORCEABLE AN HAVE OFFENDERS DO .VI

?PROGRAMS TREATMENT TO RIGHT

 For .right a not and privilege a as parole or probation of granting the viewed generally have Courts

 whether determine to court trial the of discretion the within is it; probation receive to right mentalfunda no is there “that stated Appeals Criminal of Court Texas the ,85State .v Flores in ,example

 an ,parole or probation granted once ,Nevertheless” .probation to entitled is defendant individual an

 similar to available are that services or programs certain in participate to entitled be may offender

.consequences adverse in result may which of denial the ,parolees and probationers

 an 86Beckler .v People in ,However .issue this examined have that cases reported few very are There

 to program treatment the by rejected was who defendant a of plight the on focused court appellate

 right ,hearing ,notice required process due Consequent .supervision under remaining in interest atedcre statutorily a had defendant the that ruled court appellate The .him assigned court trial the which

 defendant the against evidence of disclosure and ,witnesses adverse examine-cross and confront to

 .treatment further him refusing in agency the by used

 agency the that ensure to utilized be should procedures that held court appellate the Beckler In

 merely Beckler ,However .supervision in interest s’defendant the disregarded arbitrarily not had ruling

 Although .provide so statutes where process due without denied be not may supervision suggests

 by compliance for argument forceful a constitutes logic inherent its ,alone stands presently case the

 due to right a for stands Beckler ,Nevertheless .statutes similar of provisions under working officers

.supervision to right a not ,process
Supervision

6 Chapter

103

VIOLATIONS REPORTING .VII

 for concern of issue another is offender released a on imposed conditions the of enforcement The

 or He .board parole or court the to violations report to duty a has officer an ,Generally .officers field

 the in parolee/probationer the of supervision and with contact close maintain to duty the has she

 few very found has research ,Nevertheless .87public the of protection and rehabilitation of interests

 crime subsequent a and violation a report to failure s’officer an from arose liability which in cases

 and Probation of Liability Concerning Decisions Judicial Recent See (.client a by committed tort or

Institute Psychiatric .v Semler of discussion the see ,However .)Chapter this in ,below ,Officers Parole

*.municatedcom not was status treatment in change a when attached liability which in case a for chapter this in

 COLLECTIONS RESTITUTION .VIII

 specified not is amount an If .restitution of amount the assess cannot generally officer probation A

 a with probationer the provide must court The .88collected be may none ,probation of order the in

 probation the to authority that delegate to improper is It .restitution as paid be to amount specific

 a of part other any with as ,restitution of imposition the that is here premise basic The .89supervisor

 the determine must court the therefore and court the to granted authority statutory by is ,sentence

 .delegated be cannot and court the of duty the is conditions probation of imposition The .90amount

.91law by for provided specifically otherwise if is exception only the ,Again

 the or officer parole/probation the of responsibility the becomes it ,ordered been has restitution Once

 from received funds disburse and handle to ,structure organizational upon depending ,department

 to party the include will) board parole or (court the of order The .manner proper a in offender the

 to funds the out pay to officer the of duty the is it ,company a as such ,name specific a than less thingsome state may order the cases some in Although .amount the as well as ,due is restitution whom

.party proper the

 In .funds the disbursing of duty the given is officer the unless accrues responsibility personal No

 ,disbursements and offender the by payments handle to maintained is office separate a ,cases most

 is officer the if However .responsible is ,officer individual the not ,department the case which in

 anyone to disbursed be may funds No .disbursement improper for liable held be may he ,responsible

 liable held was officer an ,Thus .)board parole or (court the of order the in named party the than other

 pay to office the ordered officer supervising the but ,office probation the through paid be to was tionrestitu ,situation this In .92recipient ordered-court a of relative a to money restitution paid having for

 to court the by found was officer The .living was recipient the whom with sister s’recipient the to funds

.office his of duties the outside action exercising be

 the if ,Therefore .facts the know to her or him allow duties supervision his as insofar only but ,mentpay assuring for responsible be may officer the ,offender the by directly paid being is restitution If

 ,diligence proper exercising after payments make to offender the of failure the of aware not is officer

 or (court the to matter the report to duty a is there ,aware is she or he If .liable be not will she or he

 the of part the on liability no be will there point which at ,conditions of violation a as) board parole

.93officer

 obviously is release of condition a as court the by restitution or fine a of imposition the Although

 of absence the in -- restitution make and fine a pay to failure for probation s’defendant a revoke erlyprop cannot judge a that 94Georgia .v Bearden in held has Court Supreme .S .U the ,constitutional

 alternative that or ,failure the for responsible somehow was probationer the that finding and evidence

 .deterrence and punishment in interest s’state the meet to inadequate were punishment of forms

9. Chapter see ,revocation of aspect an as violations of discussion a For*
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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104

 his ,indigent is he because restitution or fine a pay cannot parolee/probationer a if ,stated Simply

 the On .inadequate are punishment of forms alternative unless revoked be cannot parole/probation

 revocation ,pay to refuses but ,pay to capacity financial the has parolee/probationer the if ,hand other

.valid is

 GIVE OFFICER PROBATION SHOULD .IX

 WHEN WARNINGS MIRANDA OFFENDER

?QUESTIONS ASKING

 more discussed and 1984 in Court Supreme .S .U the by decided ,Murphy .v Minnesota of case The

 of effect The .issue this on concerns the of most answers ,Revocation on IX Chapter in extensively

 :follows as summarized be may decision Murphy the

 PROBATION THE BY GIVEN BE WARNINGS MIRANDA MUST

?ADMISSIBLE BE TO IS OBTAINED EVIDENCE THE IF OFFICER

Trial Revocation

(rights asserts probationer unless (No No custody in Not

Yes law state upon Depends custody In

 was This? officer probation a of custody the in probationer a is When :is then question crucial The

 not was respondent that clear is It “:was said Court the All .Murphy in satisfactorily answered not

 or arrest formal no was there because protection Miranda receiving of purposes for’ custody in‘

 clear therefore is It” .arrest formal with associated degree the of movement of freedom on restraint

 of study a From? instances other about what but ,custody in is arrest under is who probationer a that

 probationer the let to intends officer the ,interrogation the after ,If :be to appears rule the ,cases court

 no had interrogation the during officer the if ,Conversely .custody in not is probationer the then ,leave

 the convince that interrogation the during answers of because or activities s’probationer the of tioninforma prior of because either (interrogation the after leave to probationer the allowing of intentions

 and custody in is probationer the then ,)custody under placed be should probationer the that officer

.apply above summarized as rules the therefore

 as but ,custody in probationer the place to intend not did officer an initially where cases about What

 ,response incriminating an of because ,probationer the that feels officer the develops interview the

 at custody in be to considered is probationer the ,cases these In? custody in placed be now should

 that At .leave to allowed be not should probationer the that decided officer the when time in point that

 subsequent a during used be to are obtained answers if given be must warnings Miranda the ,stage

.subjective is determination that ,Obviously .trial criminal

 warnings Miranda the where (interrogation supervisory between ,therefore ,distinction a is There

 the if given be must warnings Miranda the where (interrogation custodial and) given be not need

 The .)provides so law state if ,proceeding revocation a in or ,trial criminal a in used be to is evidence

 apply should principles the that believe to reasons are there but ,probationer a involved case Murphy

.well as cases parole to
Supervision

6 CHAPTER

105

FOR COMMISSION INTERSTATE .X

SUPERVISION OFFENDER ADULT

 of supervision the regulate and control to contract a into entered have states various 1937 Since

 has also contract This .state another in living but state one in convicted parolees and probationers

 the for Compact Interstate the as known been had compact This .state another to transferred sionsupervi her/his have to eligible deemed be to parolee or probationer a for criteria the established

 Compact Interstate the as known ,compact new a 2002 In .Probationers and Parolees of Supervision

 all ,today of As .territories and states member all to applicable became Supervision Offender Adult for

 Islands Virgin .S .U the and Rico Puerto ,Columbia of District the with along ,union the in states fifty

.compact the of members are

 the on serve to individual one designate can compact the of territory and state member Each .sionSupervi Offender Adult for Commission Interstate the is compact the of operations the Overseeing

 the for procedures and rules uniform promulgate to is Commission the of purpose The .commission

 or state one from probationer or parolee a of return the sometimes and supervision ,acceptance

 interstate governing rules the with compliance monitors also Commission The .another to territory

 ,Finally .noncompliance correct and address to interventions initiates and offenders of movement

 of movement interstate of regulations regarding education and training coordinates Commission the

.95activity such in involved officials for offenders

 state respective its through proceedings the initiate must offender an of supervision the transfer to ingwish jurisdiction local a Thus .level local a at not and level state to state a on operates compact The

 in office local a contact directly cannot and matters transfer interstate handling administrator compact

 opportunity the has jurisdiction receiving The .process transfer the begin to territory or state another

 .parolee or probationer the of background the investigate even and transfer requested the review to

 the ,transfer for compact the under criteria eligibility the meet not does parolee or probationer the If

 the then ,transfer rejects jurisdiction receiving a If .transfer requested the reject can state receiving

.there supervised be and territory or state sending the in remain must parolee or probationer

 United the by enunciated holdings legal the incorporates compact the that note to important is It

 for critical is it ,addition In .97Scarpelli .v Gagnon and 96Brewer .v Morrissey in Court Supreme States

 of violation a that understand to departments parole and probation and ,authorities parole ,courts the

 ,compact the of terms express the Under .liabilities legal serious entail may compact the of rules the

 the enforce to members Commission the of vote majority a by authorized is enforcement judicial

 monetary and relief injunctive both seek can Commission the Moreover .compact the of provisions

 be even can party prevailing the and compact the of violation in territory or state a against damages

 the of rules the understand parolees or probationers of supervision the in involved persons that antimport extremely is it such As .98fee s’attorney reasonable including ,costs of award an to entitled

.99compact

SUMMARY

 United the ,searches of area the In .offenders supervising in exposure liability with deals chapter This

 be may parolees and probationers of searches warrantless that declared has Court Supreme States

 different two created has Court Supreme the ,Nevertheless .circumstances certain under conducted

 complex the with deals also chapter This .parolees and probationers of search the for standards

 chapter this ,addition In .information of nondisclosure or disclosure for liability possible of issue

 person a of acts the for liable deemed be could officer an which under theories various the discusses

 there but supervision in liability from protected are officers ,general In .supervision her/his under

 ,However .offender an of” charge takes “officer the or exists” relationship special “a if liability be might
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

106

 an supervising in actions their that foreseen reasonably have could they if negligent be may officers

 the :clear is law the ,violations of area the In .victim identifiable an to harm in result could offender

 breached has offender the whenever parole of board or court the inform to responsibility a has officer

 the of attention the to matter the brought has officer the once ,Nevertheless .release of conditions the

 must officer an ,rule general a as ,Furthermore .officer field the by handled carefully be should tionscollec monetary ,addition In .responsibility her or his discharged has she or he then ,authority proper

 used be to is obtained evidence the if and custody in is probationer the if warnings Miranda the give

 the with herself or him familiarize should officer an that stresses chapter this ,Finally .trial criminal a in

.Supervision Offender Adult for Compact Interstate the of regulations and rules

NOTES

.(1987) 868 .S.U 483 ,Wisconsin .v Griffin 1.

.(2001) 112 .S .U 534 ,Knights .v States United 2.

.(2006) 843 .S .U 547 ,California .v Samson 3.

 basis some on based be to needs still parolee a of residence the of search the that arguing by forniaCali .v Samson in holding the of scope the narrow to tried has parolee a cases certain in Although 4.

 United See .courts appellate by rejected generally been has argument this ,suspicion reasonable of

.(2007 – .Cir th9 (1208 d3 .F 474 ,Lopez .v States

 of holding the followed Court Supreme Illinois the ,)2008 – .Ill (35, d2 .Ill 228 ,Wilson .v People In 5.

.proper was parolee a of residence the of search suspicionless the that held and California .v Samson

 States United the to prior decided) 1976 - .App .Cr .Tex (686 d2 .W .S 534 ,State .v Tamez See 6.

.(1987) 868 .S.U 483 ,Wisconsin .v Griffin in holding Court Supreme

.(1992 .Vt (478 d2 .A 618 ,Moses .v State 7.

 .v People ,also see); 1999 (861 d2 .E.N 714 454, d2 .Y.N 93 649, d2 .S.Y.N 692 ,Hale .v People 8.

.(1992 .Vt (478 d2 .A 618 ,Moses .v State and) 1999 (88 d2 .Rptr .Cal 88 1019, d2 .P 981 ,Woods

.(2009 – .App Alaska (1148 d3 .P 211 ,State .v Phillips 9.

 disallowed court appellate Alaska an ,)2007 – .App Alaska (838 d3 .P 172 ,State .v Lambert In 10.

 of request the at ,submit to “assault of convicted defendant a requiring condition a of imposition the

 which in vehicle any or residence ,property personal ,person “his of search a to ,officer probation his

 a had defendant the though Even .overbroad as” contraband of presence the for found be may] he[

 search a than more included” contraband “term the that noted court the ,abuse substance of history

 ,tools burglary ,weapons ,property stolen “included also” contraband “term the; alcohol or drugs for

 any had items these of none which for search the” .,etc ,videotapes ,photographs ,money counterfeit

 had condition search the If .assault :wit-to; convicted was he which for offense the for relationship

 the ,likelihood all in ,then ,substance illegal an or alcohol of abuse the to related items to limited been

.condition search a of imposition the affirmed have would court appellate

.(1973) 218 .S .U 412 ,Bustamonte .v Schneckloth 11.

 .Ill (13 d2 .E.N 895 ,Thornburg .v People ,also see); 2009 .Ga (68 d2 .E .S 677 ,State .v Brooks 12.

.(2008 – .Dist d2 .App

.(1991) 248 .S .U 500 ,Jimeno .v Florida 13.

.(2008 – .App .Or (282 d3 .P 178 ,Tyler .v State 14.
Supervision

6 CHAPTER

107

 reference still will section this ,parolees of searches conducting in suspicion individualized an ticulatear to need the with dispensed California .v Samson in holding s’Court Supreme the though Even 15.

 is This .parolees of searches conducting for reasonableness of level the discussing ,holdings state

 suspicion individualized for need the recognizes longer no court state a if even ,One .reasons two for

 of level the articulating for useful still are cited case these ,parolee a of search a conducting where

 States United the though even ,Second .probationer a of search a conducting in reasonableness

 to does Constitution States United the to Amendment Fourth the that held now has Court Supreme

 based be must parolees of searches that constitution state their or law case ,statute state either derun find still may states some ,parolees of searches conducting when suspicion individualized require

.reasonableness of standard state the meet to order in suspicion individualized on

.(1990 - .App .Cr .Ala (1308 d2 .So 572 ,State .v Toney See 16.

 on Felon Convicted the of Rights ,Hill ,also see); 2008 – .Del (825 d2 .A 958 ,State .v Sierra See 17.

.(1983 ND (14 d2 .W .N 331 ,Perbix .v State and) 1979 (371 370, .Rev .L .Rich .U 13 ,Parole

.(1975) 302 d2 .P 536 34, .Colo 189 ,Anderson .v People 18.

.(1975 .Ct .Sup County .Y.N (130, d2 .S.Y.N 368 184, d2 .Misc 82 ,Santos .v People 19.

 536 34, .Colo 189 ,Anderson .v People ,also See .)1972 .Mo (468 d2 .W .S 486 ,Williams .v State 20.

.(1983) 1095 d2 .P 657 227, Idaho 104 ,Pinson .v State); 1975 (302 d2 .P

.(1994) 463 .App .Neb 2 205, d2 .W .N 511 ,Sievers .v State 21.

 stated Court Supreme Montana the which in ,)2009 – .Mont (251 MT 2009 ,Campa .v State See 22.

 a involves search probationary a conduct to cause reasonable of existence the determining that

.circumstances the of totality the on based inquiry factual

 a for substitute a as serve not could ,alone standing ,probationer a as status s’defendant a that edstat Court Supreme Georgia the which in ,)2007 – .Ga (456 d2 .E .S 653 ,State .v Jones See 23.

 of search warrantless a conduct to officers police and officer probation a allow and warrant search

 authorized legally ,law any of existence the show to failed state the where residence s’defendant the

 right Amendment Fourth s’defendant the on limitation any imposing order sentencing or ,regulation

.search the of time the at residence his of searches warrantless against

 .So 576 ,Epperson .v State ,also see); 2007 – .Co .Y .N (841 d2 .S.Y.N 848 ,Borger .v People See 24.

.(1991 - .App .La (96 d2

.(1998 .Cal (445 d2 .P 968 ,Reyes .v People See 25.

 court appellate Florida a which in ,)2009 .Dist .--1App .Fla (1117 d3 .So 1 ,State .v Gordon See 26.

 namely ,probationer a by violation probation a alleging tip phone anonymous ,unverified an that held

 d2 .E .S 667 ,State .v Spencer ,however see; residence the of search a supporting suspicion ablereason provide to sufficient not was ,residence s’probationer the inside drugs illegal of presence the

 agents narcotics by conducted search a upheld Court Supreme Georgia the which in ,)2008 .Ga (223

 other by supported was tip anonymous the because probation of condition special a to pursuant

.evidence

 stated Court Supreme Kansas the which in ,)2009 Kansas (455 d3 .P 200 ,Bennett .v State See 27.

 searches suspicionless ,random to submit probationer a that requiring probation of condition a that

 States United the to Amendment Fourth the under rights constitutional s’probationer the violated

.Rights of Bill s’Constitution Kansas the and Constitution

.(2008 .Dist .--2App .Ill (13, d2 .E .N 895 ,Thornburg .v People 28.

.(1978 .Cir th4 (787 d2 .F 571 ,Bradley .v States United 29.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

108

.(1990) 128 .S .U 496 ,California .v Horton 30.

 Appeals of Court Circuit Second the ,)2002 .Cir nd2 (446 d3 .F 283 ,Reyes .v States United In 31.

 pursuant probationer a of visit home a of context the in contraband of discovery view plain a upheld

.time any at visits home permitting condition probation a to

.(2006 .Mont (662 d3 .P 148 ,Moody .v State 32.

 visit home a whether of issue this addressing courts other that noted Moody .v State in Court The 33.

 initial the ,search a into evolve could visits such although ,that concluded had search a constituted

 .v Latta and) 1978 – .Cir th4 (1205 d2 .F 585 ,Workman .v States United citing ,search a not was visit

.(1975 – .Cir th9 (246 d2 .F 521 ,Fitzharris

 of Court Worth Fort the ,)1999 ,Worth Fort – .App .Tex (323 d3 .W .S 1 ,State .v McArthur In 34.

:provides which 4321 § .C .Del 11 ,also see;” material explicit sexually of presence the for sessionspos and vehicle ,residence your search to officer supervision your permit to “him required that visionsuper community granted offender sex a on condition search a of imposition the approved Appeals

 of laws the under constables as powers same the exercise shall officers parole and Probation

 in supervision parole and probation under individuals of searches conduct may and State this

 by officers the to directed as process other and warrants ,orders lawful execute shall and ploymentem their of duties lawful the of performance the in while procedures Department with accordance

.State this in Parole of Board or judge ,court any

,Dally .v States United); 1978 (977 .S .U 440 ,denied .cert ,).Cir th9 (988 .d2 .F 580 ,State .v Ryan 35.

.(1979 .Cir th9 (861 d2 .F 606

.(1978) 977 .S .U 440 ,denied .cert ,).Cir th9 (988 d2 .F 580 ,State .v Ryan 36.

.(2008 .App .Wis (106 d2 .W .N 762 ,Jones .v State 37.

 therefore and supervision extended rather but parole on not was he that argued defendant The .tionproba or parole on was defendant the whether was appeal the in issues contentious the of One 38.

 both Nevertheless .parolee a to than rather probationer a to analogous closely more was status his

.considered not was) 2006 (843 .S .U 547 ,California .v Samson in parolees of search the for mulatedfor standard the therefore and search probation a were it if as search this analyze to agreed parties

.(1998 .Cal (445 d2 .P 876 ,Tyrell re In 39.

 968 ,Reyes .v People in parolees to Tyrell in holding the extended Court Supreme California The 40.

.(1998) 445 d2 .P

 .Ariz (1329 d2 .P 566 ,Montgomery .v State); 1971 .Cal (630 d2 .P 488 ,Mason .v People See 41.

 ;(1988 .Ga (909 d2 .E.S 369 ,State .v Allen); 1993 Idaho (993 d2 .P 867 ,Josephson .v State); 1977

.(1972 .Nev (763 d2 .P 469 ,State .v Himmage and

 439 d2 .F 849 ,Richardson .v .S .U ,also see); 1985 .Cir th9 (1457 d2 .F 754 ,Jarral .v .S .U See 42.

 .(1988 .Cir th9(

.(1995 .Cir th9 (795 d3 .F 67 ,Watts .v .S .U See 43.

.(1994 .Cir th9 (1117 d3 .F 21 ,McDonald .v .S .U See 44.

 that agency police another help to subterfuge a as authority his use not may officer probation or rolepa a that stated court appellate Louisiana a ,)2009 .App .La (1168 d.3So 13 ,Bolden .v State In 45.

 believe must officer probation or parole the; cause probable lacks but ,search a conduct to desires

 total the of light in reasonable and duties his of performance the in necessary is search the that

.circumstances
Supervision

6 CHAPTER

109

.(2008 – .Del (5 d2 .A 956 ,Delaware .v Culver 46.

 .duties official performing while armed be to officers probation juvenile allow to discretion the mentsdepart probation juvenile county gave which 1237, .B .S enacted Legislature Texas the 2009 In 47.

 this in jurisdictions few very that noting worth is It 141.066. § ,Code Resource Human Texas See

.armed be to officers probation juvenile their allow still country

46.15. § ,Code Penal Texas Annotated s’Vernon See 48.

 2.10, Article ,Law Procedural Criminal State York New and 309.1 § ,Statutes Pennsylvania 61 See 49.

23. §

.(1986) 327 .S.U 474 ,Williams .v Daniels See 50.

 .S .U 523 ,Lewis .v Sacramento of County ,also see); 1976 (97 .S .U 429 ,Gamble .v Estelle See 51.

.(1998 .Cir th7 (394 C 97 .No ,County Marathon and Goch .v Schaefer and) 1998 (833

 .Supp .F 939 ,Reno of City .v Paiva ,also see); 1989 (378 .S.U 489 ,Harris .v Canton of City See 52.

.(1996 .Nev .D (1474

.(1979 .J.N .D (1237 .Supp .F 476 ,Margate .v Popow 53.

.(1992 .Cir th6 (1036 d2 .F 953 ,Cincinnati of City .v Russo 54.

.(1989) 378 .S.U 489 ,Harris .v Canton of City 55.

.(1985) 1 .S.U 471 ,Garner .v Tennessee 56.

.(1989) 386 .S .U 490 ,Connor .v Graham 57.

 37-38 35, .Prob .Fed 41 ,Supervision in Officers Probation of Responsibility Legal The ,Kutcher .J 58.

.(1977)

.(1983 .Cir th9 (906 d2 .F 714 ,Boyd .v Anderson 59.

.(1976) 754 d2 .P 544 727, .App .Wash 14 ,Roberts .v State 60.

757. at d2 .P 544 730, at .Id 61.

.(1979) 707 .S .U 442 .,C Michael .v Fare 62.

719-720. at .Id 63.

 rd3 .So 7 ,Summitt .v Brungardt and) 2009 .App .Ind (1026 d2 .E .N 903 ,Shepherd .v Vargas See 64.

 under claim a through asserted been also has privacy of breach of claim A :Note .)2009 App .La (879

.(1984) 517 .S.U 468 ,Palmer .v Hudson see; Constitution States United the to amendment fourth the

.(2009 ,Dist 5 .App .Cal (858 rd3 .Rptr .Cal 91 .,Inc ,nelSenti Hanford .v Moreno ,also see); 2009 App .Ga ( 149 d2 .E .S 677 ,Fitzgerald .v Gettner See 65.

 959 .,P .L Time Scranton .v Joseph ,also see); 2009 .Wyo (966 rd3 .P 213 ,Wood .v Abromats See 66.

.(2008 – .Super .Pa (322 d2 .A

Parrish ,also see); 2008 .App .Miss (136 d2 .So 996 .,Inc ,Casino Capri of Isle .v Mayweather See 67.

.(2007 .App .C .S (382 d2 .E .S 656 ,Allison .v

 Philadelphia – PW .v Alston ,also see); 2009 .App .Conn (59 d2 .A 975 ,Bubar .v Morgan See 68.

 .Educ Virtual .v .Dist School County Clark see ,finally); 2009 .App ,Cmwlth .Pa (215 d2 .A 980 ,Weekly

 action an that held Court Supreme Nevada the which in ,)2009 .Nev (496 d3 .P 213 .,Inc ,Software

 an) 2; statement defamatory and false a :elements four prove to plaintiff the required defamation for

 or actual) 4 and; negligence least at to amounting ,fault) 3; person third a to publication unprivileged

.damages presumed
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

6 CHAPTER

110

 (2008 – .Vir .W (395 d2 .E .S 672 ,Virginia West of Associates Management Health .v Hatfield See 69.

Victoria ,also see); 2008 – .App .Ga (683 d2 .E .S 666 ,LLP ,Martin and Manning ,Morris .v Smith and

.(1991 .Tex (931 d2 .W .S 811 ,Brady .v Trust and Bank

35. Part CFR 42 in found are -2dd290 § .C .S .U 42 implementing regulations federal The 70.

.(a(164.502 § .R .F .C 45 71.

 comply to impossible be would it if contrary is statute state A :Note .)2003 (160.203 § .R.F.C 45 72.

 the accomplishing “to obstacle an be would law state if or ,HIPAA with and statute state the both with

 ,Summary OCR” .HIPAA of portions Simplification Administrative the of objectives and purposes full

 state exempt not does Rule Privacy the ,Moreover .)2003 (160.202 § .R.F.C 45; 16 at 8, note supra

 is statute state a ,Generally .)2003 (160.202-.203 §§ .R.F.C 45” .stringent more “are that statutes

 is who individual the for protection privacy greater provides “it if Rule Privacy the than stringent more

.(6)160.202 § .Id” .information health identifiable individually the of subject the

.(2000) -6d1320 -5,d1320 §§ .C.S.U 42 See 73.

“.information health protected “defines) 2003 (160.103 § .R.F.C 45 74.

 .(1)(b(164.502 § .Id 75.

.Id 76.

.(1)(b(164.506 § .Id 77.

 in information health protected the disclose may entity covered the ,circumstance this Under 78.

 patient the that satisfied is entity the if law state by authorized extent the to subpoena a to response

.order protective a secure to made was effort an that or request the of notified been has

 United the at available is information ,HIPAA under protections privacy the better understand To 79.

.hhs.www://http :address following the at website Services Human and Health of Department States

/.understanding/hipaa/privacy/ocr/gov

.(1983 .Pa .D.S.U (539 .Supp .F 556 ,Schaeffer .v Hall 80.

.(1983 .Cir th5 (214 d2 .F 710 ,Garmon .v Galvan 81.

.(1983 .Cir th9 (906 d2 .F 714 ,Boyd .v Anderson 82.

.(1984 .Pa .D.S.U (53 .Supp .F 588 ,Center Rehabilitation and Hospital Eagleville .v Jones 83.

.(1976 .Cir th4 (121 d2 .F 538 ,Institute Psychiatric .v Semler 84.

(1996) .1050S.U 516 ,denied .cert ,)1995 - .App .Cr .Tex (129 d2 .W .S 904 ,State .v Flores 85.

.(1984 .Ct .App .Ill (672 d2 .E.N 459 ,Beckler .v People 86.

 .Fla (1158 d2 .So 360 ,State .v Jones); 1975 .C.D.D (217 .Supp .F 389 ,Glasgow .v States United 87.

 ;(1977 .Div .App .Ct .Super (185 d2 .A 376 497, .Super .J.N 150 ,McCain .v State); 1978 .App .Ct .Dist

.(1976 .D .S (484 d2 .W .N 247 ,Marshall .v State

.(1979) 274 d2 .W .N 278 287, d2 .Wisc 89 ,Thieme .v State 88.

.(1979 .App .Ct .Dist .Fla (255 d2 .So 377 ,State .v Cothron 89.

.(1978) 529 d2 .S.Y.N 406 614, d2 .D.A 64 ,Julye .v People 90.

.(1971) 601 d2 .F 435 ,Crocker .v States United 91.
Supervision

6 CHAPTER

111

.(1979) 199 d2 .A 402 437, .H .N 119 ,Hodgdon .v Pouliot 92.

.(1979) 1173 d2 .A 400 247, .H .N 119 ,Mahon .v McCrady 93.

.(1983) 660 .S .U 461 ,Georgia .v Bearden 94.

.aspx.Default/58/tabid/History/About/org.interstatecompact.www://http 95.

.(1972) 471 .S .U 408 ,Brewer .v Morrissey 96.

.(1973) 778 .S .U 411 ,Scarpelli .v Gagnon 97.

.aspx.Default/57/tabid/InterstateCompactFAQs/History/About/org.interstatecompact.www://http98.

 Interstate the of website the at compact the of rules the access can officer parole or probation A 99.

/library/0/Portals/org.interstatecompact.www://http :at Supervision Offender Adult on Commission

.pdf.Rules_ICAOS/legal

7 CHAPTER

 ,MODIFICATIONS ,CONDITIONS

STATUS IN CHANGES AND

 INTRODUCTION

GENERAL IN CONDITIONS .I

RIGHTS CONSTITUTIONAL AND CONDITIONS .II

Assembly and Speech Free .A

Association .B

Religion .C

Privacy .D

Procreation .E

Travel and Restrictions Territorial .F

Incrimination-Self .G

Effect Legal Their and Conditions Specific Some .H

Notification Public or Shaming .l 

Polygraphs 2. 

Volunteer Unpaid or Paid – Condition a as Work 3. 

Extradition of Waiver 4. 

Requirements Registration Offender Sex 5. 

Internet the and Computers to Access on Restrictions 6. 

LIMITATIONS AS OVERBREADTH AND ,REASONABLENESS ,VAGUENESS .III

Vagueness .A

Reasonableness .B

Overbreadth .C

CONDITIONS OF EXPLANATION .IV

CONDITIONS OF MODIFICATIONS .V

EXTENSION .VI

TERMINATION .VII

OFFENDER THE OF STATUS IN CHANGES .VIII

Notice of Change a Provide to Duty .A

Status of Determination .B

Notifications Party Third .C

SUMMARY

NOTES

113

Status in Changes and ,Modifications ,Conditions

7 Chapter

115

INTRODUCTION

 of supervision proper the to essential is probation or parole of conditions the of enforcement The

 or court the that expectation the and board parole or court the of will the reflect Conditions .offenders

 offender the that ensuring for responsibility legal the have officers parole and probation ,)officers rolepa (branch executive the of officers or) officers probation (court the of officers As .successfully sionsupervi of term the complete to probationer or parolee a for order in established has board parole

.board parole or court the by imposed conditions the with abides

 the ,offender an of needs and risks the of determination The .offender the for established plan menttreat or supervision any of part essential an form probation or parole of conditions the ,addition In

 by made recommendations specific and ,individual the to administered assessments any of results

 reappear often defendant the of release the considering is that board parole or court the to officer the

.individual the for developed plan treatment any and offender the of plan sionsupervi the in incorporated be must ,turn in ,conditions These .probation or parole of conditions as

 ,regular :classifications three into categorized be basically can parole or probation of Conditions

 under ,follow must offender an that conditions the to addition In .conditions modified and ,special

 .officer his to status his in changes any report to obligated be may offender an ,circumstances certain

 as ,parole or probation of condition a as required be may status in change a report to obligation This

 This .mandate statutory a as or ,department parole or probation the of requirement administrative an

 be may that requirements status of change and conditions of types various the examine will chapter

 are conditions that ensure to officer an of responsibility the ,offender an of required or on imposed

.requirements reporting or conditions of enforcement improper or equateinad the in arise may that issues liability potential the and ,reported is status in change a or enforced

 approved or authorized statutorily is that one generally is parole or probation of condition regular A

 a by imposed is ,compelled or defined statutorily specifically not though even ,that one be may tioncondi regular a ,addition In .parole or probation granted offender every almost on imposed is and

 parole or probation of grant a requesting offender every almost on board parole or court particular

 type this ,application universal its of Because .authority parole or sentencing that before appears who

 probation of condition regular a of imposition The .condition’ regular ‘a as to referred is condition of

.1condition special a than appeal on successfully challenged be to likely less is parole or

 regular A 

.reasonable be to presumed invariably almost is condition

 It .parolees or probationers all on course of matter a as imposed not is that one is condition special A

 avoid to her or him requiring by offender specific a of rehabilitation the promote to designed usually is

 ;permissible held be to likely is condition the ,speciety a address to order in service or program larparticu a in participate to or being-well her or his to conducive be to not deemed environment an

 future to or offender the by committed offense the to relationship no bears that condition a ,however

 s’parolee or probationer a on infringes impermissibly or ,public the protect not does ,acts criminal

.2invalid is rights constitutional basic

 liability fear not need officer field the ,therefore; board parole or court the by only set are Conditions

 ,conditions of enforcement the with concerned be should she or he ,however; imposition their for

 they before is issues such with deal to time best The .practicality and rehabilitation of matters as both

 overly either is that condition a include not should report parole-pre or sentence-pre A .imposed are

 condition a ,example For .legality or function its to as question serious to open or supervise to difficult

 First the with conflict potential a of because category this into fall would attendance church requiring

.religion of exercise free the of guarantee s’Amendment

 other any “with offender the by compliance require to as way a such in phrased is that condition A

 may condition a Such .officer the for problems serious to lead can officer supervising the of” order
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

7 Chapter

116

 certain a enforce or impose to decision the leaves it because authority of delegation improper an be

 .board parole or court the with not and officer parole or probation the to offender the on requirement

 ,Moreover .void generally is condition a such ,contrary the to authority statutory express absent ,Thus

 an require to officer parole or probation a on authority blanket bestow cannot board parole or court a

 is it but ,illegal” check blank “a such is only Not .so doing from refrain or act an perform to offender

 problem specific cause would that position a in offender the put to rehabilitation to conducive not also

 potential the reduce to order in imposed be may condition special a ,addition In .her or his of need or

 can condition a as long So .victim a or community the to harm specific a committing offender an of

.informant an become to him ordering as such ,conflict lyfami or peer severe of protection the and aims rehabilitation to both contribute to said be reasonably

 condition formal a ,First .guidance ample officer field the give should that stated be can rules General

 is ,place and time certain a at officer the with meeting as such ,condition reasonable a ,Second) .terchap this in discussed limitations the Note (.acceptable generally is board the or court the by set

 will orders radical ,situations emergency in ,Third .faith good in imposed is it as long so acceptable

 true a under necessary and temporary are ,faith good in imposed are they provided acceptable be

 himself protect best can officer the ,situation a such with faced When .illegal not are and ,emergency

 admission written a ,refused is that if or ,consent written a offender the from obtaining by herself or

 set in changes substantial ,Fourth .it challenge to wishes and order the of aware is offender the that

.3board the or court the by made be must nature ingendur an of changes any ,Fifth .conditions emergency under except made be not should conditions

 the notify to obligated is officer the ,events all In 

.offender the to condition the explain ,general in conditions with as ,and change the of offender

 process due the under lawsuit a for basis the be can conditions of enforcement arbitrary or Unequal

 state individual under possibly and Constitution States United the of clauses protection equal and

 potentially will individuals of classes or individuals between distinctions Unreasonable .constitutions

 conditions of enforcement capricious or arbitrary the ,Moreover .liability personal to officer the expose

 .liability incur also may act unreasonable an perform parolee or probationer a that requirement the or

 the and distinctions Class .basis case-by-case a on decided be will reasonableness of question The

 extremely are ethnicity or ,religion ,gender ,creed ,race on based enforcement selective or unequal

.avoided be always should and justify to difficult

 conditions ,particular In .recently examination judicial of target the been have areas specific Several

 public ,is that ,”letters scarlet; “expression and speech free of rights; rights reproductive involving

 and computers to access and examinations polygraph periodic undergo to requirement the; shaming

 current the of statement brief a After .scrutiny judicial to subject been have Internet the of use the

 will chapter this in conditions about discussion the of remainder the ,general in conditions on law

 ,rights constitutional fundamental upon infringe that conditions) 1 (:ones difficult more the consider

.offender the to conditions of explanation) 3 (and ,rights other upon infringe that conditions) 2(

GENERAL IN CONDITIONS .I

 some impose jurisdictions All .confinement from freedom conditional enjoy parolees and Probationers

 in observe to expected is parolee or probationer the that ,conduct of standards or ,conditions explicit

 is conditions parole imposing authorities of number the because data condition probation than dantabun less are conditions parole of variety and number the about Data .release her or his for return

.4limited

:are parolees and probationers on imposed conditions common more the of Some

 the or ,state another ,convicted was offender the which in state the against offense no Commit■ 

.America of States United
Status in Changes and ,Modifications ,Conditions

7 Chapter

117

.convictions nalcrimi with persons or persons disreputable with associating or around congregating from Refrain■ 

.drugs or alcohol of possession or use the from Abstain■ 

.employment suitable Maintain■ 

.basis regular a on officer parole or probation s’one to Report■ 

.state another to or state the in locality another to travel to permission Obtain■ 

.weapons other or firearms of ownership or possession the on limitations Observe■ 

.crime s’offender the of victim the to restitution Pay■ 

 This .States the of legislatures the by authorized statutorily are conditions listed above these of Most

 conditions standard certain impose board parole or courts the that legislators of desire the indicates

 of conditions enumerated legislatively of number the Nevertheless .parolees and probationers on

 of number minimum a only have laws state Some .state to state from widely vary parole or probation

.conditions of array extensive an list statutes’ states other while conditions prescribed

 on conditions special impose to board parole or courts the authorize may legislators ,addition In

 be may abusers Substance .zones safety child enter not and ,offenders sex as register ,therapy eroffend sex in participate to required be may offenders sex ,example For .all not but offenders certain

 for convicted Persons .treatment abuse substance in participate and urinalysis to submit to required

 participate and vehicle motor a operating from refrain to required be may influence the under driving

 .abuse alcohol for counseling in

 not may that offender an on condition special a impose may board parole the or courts ,Moreover

 person a Thus .offender individual the of need or risk specific a address but mentioned statutorily be

 condition a as ,required be may assault domestic of convicted person A .bookkeeper a as ploymentem seek not to ,parole or probation or condition a as ,required be may embezzlement of convicted

 and ,criminal itself in not is that conduct to relates) 2 (,crime the to relationship no has) 1 (:teristicscharac following the of three all has it if invalid only is parole or probation of condition special a ,allyGener .member family injured other or spouse her or his contacting not from ,parole or probation of

 or offender the of criminality future the to related reasonably not is that conduct requires or forbids) 3(

.5parole or probation of ends statutory the serve not does

 of end the at parole or probation on were women and men adult million 5 than more that Considering

2006,6

 foreclosed is challenge legal a that mean not does ,however ,parole/probation of terms the to ingagree of act mere The .them challenging of consequences possible the of aware also is and tionscondi the to agreed has she or he that realizes parolee/probationer a because is This .small inglysurpris is conditions of legality and constitutionality the concerning litigation of frequency the 

 particularly ,waived be not may rights constitutional some that said have Courts .waiver of because

 undue to amount might This .release-non or incarceration is waive to refusal a to alternative the if

.coercion or influence

 and terms set to discretion broad has parole or probation granting authority the ,speaking Generally

 suggest statutes authorizing Most .disposition the creating framework statutory the within conditions

 not is board parole or courts the on conferred also discretion supplemental The .conditions minimum

 some bear to shown be cannot it if upheld be not will condition challenged a and ,however ,unlimited

 systems parole and probation the underlying purpose rehabilitative the to relationship reasonable

 conditions core the As .offender the by acts criminal future deterring for basis rational some has or

 a if even Nevertheless .successful seldom are them to challenges ,related so are always almost

the inform must condition the in found language specific the ,law in basis rational a has condition
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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 said or do not must or must she or he what of terms unambiguous and ,definite ,clear in offender

.7invalid be will condition

 to related reasonably) 1 (:are they as long as valid conditions consider will courts ,rule general a As

 to court one from considerably varies ,however ,interpreted are requirements these How .stitutionalcon) 4 (and ,reasonable) 3; (clear) 2; (society of protection the or offender the of rehabilitation the

.state one within even ,another

 courts the approach the discuss will and limited is conditions set to power the that illustrate will edpresent material The .imposed often less are that conditions with deals Chapter this in follows What

 certain ,rare still although situations these In .offenses domestic assaultive and offenses sex for rolepa or probation granted persons to regards in case the especially is This .courts the by utilized inglyincreas being are they that indicating trend a show may conditions certain of imposition the ,posedim often less are conditions these though Even .permissible is condition a whether determine to take

.jurisdictions more and more in used being are and country the in popularity gaining are conditions

*RIGHTS CONSTITUTIONAL AND CONDITIONS .II

 .constitutional be must condition the that is ,however ,limitation One .parole or probation of ditionscon imposing when discretion and authority of lot a exercise boards parole and judges ,general In

 they meaning ,rights constitutional diminished have parolees and probationers ,conviction Despite

 condition particular a whether determining Thus .rights constitutional some lost also but some retain

 In .offender the of rights the and State the of interests the of balancing a involves constitutional is

 to sought purpose the) 1 :factors three involved usually test balance this law probation of area the

 citizens abiding law by enjoyed rights constitutional which to extent the) 2 ,probation by served be

.8enforcement law of needs legitimate the) 3 and probationers to afforded be should

 may ,parole of conditions of imposition the reviewing in ,courts ,incarcerated been already have eesparol Because 

 condition a reviewing in would they than State the of interests the to deference greater much give

.9probationer a on imposed

 ,release of conditions down strike not will courts appellate federal generally ,system federal the In

 of ends the to related reasonably are conditions such if ,rights fundamental implicated they if even

 courts appellate federal ,Nevertheless .10recidivism from public the of protection and rehabilitation

 for reason the record the on specify condition the imposing judge district federal the that require do

 ,deterrence of goals the achieve to necessary reasonably is than liberty greater of offender the privede not must imposed condition the ,involved are rights fundamental whenever ,Moreover .11so doing

 the addressed have courts How .12defendant the of rehabilitation the or/and ,public the of protection

.below discussed is lose or retain parolees and probationers rights constitutional what of issue

Assembly and Speech Free .A

 probationers Thus .13parole or probation granted are they whenever interest liberty conditional a tainre) probationers inference by and (parolees that recognized has Court Supreme States United The

 are offenders the because simply abridged not are that rights fundamental certain have parolees and

 may that rights assembly and speech affecting restrictions the limited also have courts appellate ,escircumstanc certain in restricted be may rights fundamental these Although .14parole or probation on

 because abridged be cannot rights constitutional certain that principle the recognized content ditionscon parole the in cases leading Two .parole and probation of condition a as offenders on imposed be

.parolee the of status the of

.Supervision 6, Chapter in up taken is seizure and search of issue The* 
Status in Changes and ,Modifications ,Conditions

7 Chapter

119

 by violated been had rights Amendment First his that asserted parolee federal a ,15Reed .v Sobell In

 of limits the outside going from board the by restricted was Sobell .Parole of Board the of action an

 various ,at speak to and ,to travel to permission obtained and sought Sobell ,release his after casionsoc of number a On” .officer parole the from permission without . . . “ York New of District Southern the

 denials such that charged Sobell .denied were requests such ,occasions other on ,However .places

.rights Amendment First his invaded

 ,parolees and prisoners between differences are there while that stated court district federal The

 After .16Amendment First the under latter the by enjoyed protections the diminish that none are there

 show strongly authorities) parole (the where “:as such ,principles same the by restriction the testing

 board the that held court the 17”, . . . infringement their justifies which and ,rights constitutional portantim these of limitation or subordination the requires which interest controlling and substantial some

 show could it when except ,assembly or ,expression ,speech of rights his of exercise s’Sobell violated

 highly and described specifically against safeguard to necessary was permission withholding that

.18parolee the by misconduct of dangers likely

 ,parole his of condition a As .parolee California a involved ,19Procunier .v Hyland ,case second The

 The .speeches public any giving before officer parole his from permission obtain to required was he

 on denied were campus college a at conditions prison about speeches give to requests s’parolee

 The .prison the at demonstrations student to lead might speeches the that grounds on occasions two

 reasonableness of rule process due the imposed has law federal) and (California “that stated court

 Hyland on imposed condition the that showing no made California that found court The 20”.bationerspro and ,parolees ,prisoners from privileges withholding or granting in discretion s’State the upon

:from state the prohibited nentlyperma court the ,Thus .system rehabilitative s’California of ends valid the to related way any in was

.permission advance such seeking his on parole s’Hyland Conditioning 1.

 the of content expected the of because is prohibition such when ,Cruz Santa at California of tyUniversi the at held assemblies public addressing from parolee state California any Prohibiting 2.

.21speech

 convicted been have may individual an though even that notion basic the exemplify cases two These

 and speech of freedom of right the especially ,rights fundamental certain retains still he ,crime a of

 relationship rational a shows state the if infringed be only can rights These .assembly of freedom

 part the on interest penological legitimate a and individual the of rights the on restriction the between

 ,parolees as such; interest liberty conditional a with persons For .authorities) federal or (state the of

 fundamental a on imposed restriction the ,Moreover .liberty s’parolee the curtailing for ,interest algener more a of instead ,interest compelling or heightened a demonstrate must usually state the

 least the in state the of interest compelling the serve to tailored narrowly be must right constitutional

.area probation the to extend logically holdings court These .possible means restrictive

 must conditions probation that stated Appeals of Court Circuit Tenth Federal the ,22Templar .v Porth In

 stands case The “.public the of protection the and offender the of treatment the to relationship a bear

 condition release a between relationship reasonable a of showing a absent that proposition the for

 ,Thus 23”.tolerated be not will right fundamental a of abridgement the ,release of purpose the and

 abridging conditions release that is cases two other the with case this viewing in implication the

 rehabilitative demonstrated and legitimate a serve they if only sustained be can rights fundamental

.24public the protect to serve objectively or objective

 that parolee or probationer a by assertion mere the that suggest not do cases these ,Nevertheless

 properly a of reach the beyond right that put will Amendment First the within embraced is right some

 tax term-long a prohibited condition probation the ,Templar .v Porth in ,example For .condition tailored

Reserve Federal the of” illegality “the concerning materials distributing or circulating from protestor
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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 appeals of court The .subjects those on writing or speaking from and tax income the and System

 to challenge a upheld court appeals Another .25laws tax the violate to others encouraging from tionerproba the prohibiting condition narrower a approved it but ,broad too were restrictions these held

 potential a ,citizens abiding-law with only associate gambler convicted a that probation of condition a

 accorded been traditionally have which ,rights political Even .26rights associational his on restriction

 Court Circuit Fifth Federal the ,Thus .situations certain under circumscribed be may ,status preferred

.27activity political in engaging from violations law election of edconvict congressman former a on probation of condition a of imposition the upheld once Appeals of

 of rights Amendment First the restricting conditions examined have decisions court recent Several

 then court trial the defendant the to probation granted Having .robbery armed of case publicized lyhigh a in convicted was defendant the ,28Power .v Massachusetts of Commonwealth In .probationers

 activity generating profit any in engage not to ,probation of condition a as ,her order to proceeded

 The .years many so for fugitive a was she how or crime her about anything publishing to connected

 on infringement impermissible an was restriction this that arguing ,condition this appealed defendant

 Instead .offense her surrounding incidents the discuss to not her order not did court trial the that ednot court The .contention this rejected court appellate The .speech free of right Amendment First her

 The .crime her of discussion any from monetarily profit not could she that said simply court trial the

.matter the about talk to right her on infringing unduly without crime her for reward cialfinan a receiving from her prevent to tailored narrowly was condition this that found court appellate

 the examine closely to having are courts ,communication electronic of forms new of advent the With

 forms certain to access preclude even or limit that conditions of constitutionality even and propriety

 Washington of state the in court appellate an ,29Zimmer .v State in ,example For .communication of

 the of convicted was who ,defendant the that condition a impose not could court trial the that held

 data electronic handheld a or phone cell a possess not ,methamphetamine of possession of offense

 was device storage data a or phone cell a possessing on ban the that reasoned court The .device

 restricting probation of conditions approval have courts ,Finally”* .prohibition related crime “a not

 being from clinics abortion of property private the on trespassing of convicted protestors abortion-anti

 unduly not does condition this that held have courts The .clinics the from distance specific a within

.30property private on again once trespassing ,is that ,criminality future deterring to shiprelation reasonable a has condition the because speech free or assembly of right their upon infringe

 Association .B

 probationer the which for offense the between correlation a is there provided permissible is ciationasso restricting condition a While .amendment first the by protected also is association of Freedom

 lead may which at presence or with association the place or person a and convicted was parolee or

 invalidated be still may condition this ,crime similar or same the commit to parolee or probationer the

31parolee or probationer the to clear be must condition The .overbreadth or vagueness for courts by

 needs condition vague or unclear An .32conditions the enforcing for responsible officer the to also and

 is conduct which knows generally parolee/probationer the that so officer the by further clarified be to

 places frequenting from parolee/probationer a forbidding condition a does ,example For .prohibited

 ?sold be may beverages alcoholic where places other or restaurants include served is alcohol where

 and determination agency or judicial of matter a usually is conditions such of intent or purpose The

 be may conditions those ,boundaries clear of absence the In .place to place from varies therefore

.unfair fundamentally be to as broad and vague overly

 United in ,example For .situation another in differently construed be might it though even stancescircum certain under vague not is it if association restricting condition a upheld have courts Some

.Chapter this of .6H.II § see ,Internet the to access restricting conditions of discussion a For*
Status in Changes and ,Modifications ,Conditions

7 Chapter

121

 an of possession unlawful of convicted was ,supremacist white a ,defendant the ,33Schave .v States

 violence espouse ,who members their or ,that organizations with “associate to not ordered was dantdefen the ,prison in term a serving after release of condition a As .device destructive unregistered

 impermissibly was condition this that argued defendant The” .race white the of supremacy the or

 prohibition a just not include could condition the of wording the because unconstitutional and vague

 defendant the preclude could also but organizations supremacist white with participating against

 that military States United the as such group legitimate a even ,group any with associating from

.violence espoused

 it if vague unconstitutionally is release supervised of condition a that affirmed court appellate The

 .prohibited conduct the to as notice sufficient intelligence reasonable of person a afford not would

 would defendant the so construed be could Schave in condition contested the that noted court The

 white a to belonged ,him to unbeknownst ,who individual an with associated he if it of violation in be

 it though even ,that organization an with associated defendant the if or organization supremacist

 stemming ambiguities these Despite .organization supremacist white a not was ,violence advocated

 be could condition this that held court appellate the ,condition particular this of wording the from

 espoused both that groups to rights associational s’defendant the limiting as construed reasonably

 this upheld court appellate the such As .organizations supremacist white were and violence

.condition

 was defendant the case this In .34Soltero .v States United is members gang with defendant the of tionassocia the limiting condition a imposing of propriety the examining decision court recent Another

 months 72 to sentenced was He .firearm a of possession in felon a being of offense the of convicted

 by imposed release of condition the Among .release supervised of years three by followed prison in

:following the were court trial the

 by directed as ,Delhi the of gathering gang street criminal a as known area any in present be not■ “

“.Officer Probation the

 ,bandana ,scarf ,hat ,cap ,badge ,button ,emblem ,insignia any possess or use ,display ,wear not■ “

“.gang Delhi the in shipmember or ,with affiliation connote may which clothing of article any or ,paraphernalia ,jewelry

 conditions these Clearly .release of conditions two these of imposition the appealed defendant The 

 the Moreover .association and expression free of rights Amendment First his impacted adversely

 .carefully reviewed be must rights fundamental upon infringing restrictions that noted court appellate

 they since that noting ,conditions these of imposition that upheld court appellate the Nevertheless

 of member a was he that admitted had defendant the and” gang Delhi “the referenced specifically

 the with familiar was defendant the that presume to entitled was court district the that ,gang this

 conditions these therefore and paraphernalia its and gathering of places its ,members s’gang Delhi

.vague impermissibly not were

 Religion .C

 all government of reach the beyond puts generally Amendment First the of clause” exercise free “The

 s’inmate an restricting in latitude certain afforded generally are officials penal ,institutions rectionalcor of context the In .life religious her or his regulate to chooses individual an how of questions

 the of interest legitimate a furthers rationally restriction the that provided ,religion of exercise free

 examined have courts the ,matters parole or probation of context the in ,However .35institution penal

 of exercise free s’parolee or s’probationer a on restrictions of constitutionality the closely more much

 attend person convicted a that require to purports that condition parole or probation a Thus .religion

.36improper be to held been invariably has services church or school Sunday
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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 the regards officers parole and probation for concern particular of and litigation recent of area One

 condition a as program treatment based religious a in participate to offender an ordering of propriety

 ,County Orange the ,37Probation of Department County Orange .v Warner In .release supervised of

 third the for convicted ,defendant a that court the to recommended Department Probation York New

 the followed court trial The .meetings Anonymous Alcoholics attend ,intoxicated while driving for time

 the that arguing ,lawsuit federal a filed subsequently defendant The .probation of condition a as ingsmeet AA said attend to defendant the ordered and department probation the of recommendation

 AA the attend he that recommending by rights Amendment First his violated department probation

 and component religious pronounced a had meetings AA that contended defendant The .meetings

.program based religious a in participate to required been have not should ,atheist an being ,he that

 person a that stated court The .contention s’defendant the with agreed Appeals of Court Second The

 to ,probation of condition a as ,required be could program based religious a to objection no had who

 probation the then ,thereof lack or ,beliefs religious his of because program based religious a in ingparticipat to objected person a if ,However .Anonymous Alcoholics as such program a in participate

 .program treatment alcohol secular a in participate to opportunity the him afford must department

 to objections religious any had he whether defendant the ask first not did ,court trial the to dationrecommen its making in ,department probation the that fact the on hinge to seems opinion This

 ,acquiesced had defendant the and had department the If .program based religious a in participating

 violated recommendation s’department the say later could defendant the that appear not does it then

.38rights Amendment First his

 for sued be could officer parole a that held appeals of court federal another ,opinion recent more a In

 that program treatment abuse substance a attend to ,objects religious his despite ,parolee a requiring

 Buddhist a ,offender the 39Kemna .v Inouye In .components its of one as NA/AA in participating had

 subsequently and i’Hawai in prison to sentenced been had ,addiction methamphetamine a had who

 order to officer parole his authorized authority parole the ,parole of conditions his of one As .paroled

 Parole i’Hawai the informed had parolee the ,attorney his Through .program treatment drug a into him

 a as program treatment narcotics based-religious a in placed being to opposition his of Authority

.parole his of condition

 However .program treatment drug a attend to parolee the require not did officer parole the ,Initially

 parole The .use drug for positive tested and trespassing for arrested subsequently was parolee the

 entailed which ,Services Treatment Addiction s’Army Salvation the attend to him ordered then officer

 the in participate to refused eventually parolee The .meetings NA/AA in participate to him requiring

 his for warrant a issuing officer parole the to led turn in This .it from terminated was and program

.parole his of revocation the for reason the of basis the formed and arrest

 NA/AA the in placement his that contending 1983, § .C .S .U 42 under suit civil a filed parolee The

 First his violated program the in participate to refusing for parole from termination his and program

 was program NA/AA the that lawsuit this in party either by dispute no was There .rights Amendment

 “power higher “a for regard a in rooted was NA/AA of basis the since program based religious a not

 case this in evidence no was there that noted further court The .Amendment First the violated gramspro treatment based-religion attend to parolee a requiring that uncontested was it therefore and

 officer parole the Nevertheless .programs of choice a had he that told been ever had parolee the that

.actions his for sued be not could he that and immunity qualified to entitled was he that argued still

 ,appealed was case this when ,favor s’officer parole the in ruled Judge District Federal the Although

 clearly violated not does conduct their as insofar “only duties discretionary performing officials mentgovern to available is suit civil from immunity qualified that noted Appeals of Court Circuit Ninth the

 The 40”.known have would person reasonable a which of rights constitutional or statutory established

 the by unanimity total almost was there that determined court The .matter this regarding courts lateappel state by and appeals of courts federal other in decisions court various examined Circuit Ninth
Status in Changes and ,Modifications ,Conditions

7 Chapter

123

 of regardless meetings NA/AA attend to offender a requiring that issue this examined had that courts

 Ninth the such As .Constitution the to Amendment First the violated objections religious s’person the

.case this in officer parole the to available not was immunity official that held Appeals of Court Circuit

 concerns religions the despite ,parolee or probationer a requires own her or his on officer pervisionsu a if that evident is It .officers parole and probation for dilemma vexing a pose decisions These

 officer supervision that ,program treatment based-religion a attend to ,individual that by expressed

 trial a that assuming However .offender the of rights constitutional the violating for liable found be can

 to parolee or probationer a that ,release of condition a as ,requires expressly board parole or judge

 judicial-quasi or judicial claiming by liability escape probably can board parole or judge trial The? tioncondi that enforcing in officer the for liability the is what ,program treatment based-religious a attend

.41immunity

 ?immunity judicial derivative claim condition that enforcing officer supervision the can ,However

 action civil a in recognized be could immunity judicial derivative of claim a that possible is it While

 condition improper or invalid an of enforcement the by right constitutional a of deprivation a alleging

 or probationer a requiring supervision of condition a imposes board parole or court a if that mendedrecom is it Instead .42case the be would this that stated be certain any with cannot it ,supervision of

 that offender the inform officer the that ,program treatment based-religious a in participate to parolee

 component religious a has participate to order been has she or he which in program particular the

 impose can officer the ,program the in participating to objection no voices offender the if Then .it to

 cannot officer the that argue point that at cannot offender the and attend to failure for sanction a

 attending to objection religious a has now she or he because violations past for sanction a impose

 an voices and program the of nature religious the of informed is offender the if ,However .program the

 officer the ,program treatment based-religious a attending to objection an voices offender the if nallyFi .program secular alternative an offender the offer should officer the then ,participating to objection

 the require to amended be conditions the that request and board parole or court the inform should

“.program treatment based-secular a in participate to parolee or probationer

Privacy .D

 relationships restrict that conditions challenging arguments of basis the been has privacy of right The

 must generally state the However .privacy to right fundamental the invades it because merely idatedinval not is condition A .45intercourse sexual limit and ,44bearing-child prohibit ,43member family a with

 s’parolee/probationer on infringing for ,interest rational the opposed as ,compelling a demonstrate

 .state to state from varies interest state compelling this demonstrating of degree The .privacy to right

 spouse her or his with residing from parolee or probationer a prohibits that condition a ,example For

 ,intoxicated while driving for imposed if unconstitutional be doubtless would members family other or

.child a to injury an or abuse domestic were crime the if justifiable be might but

 a inform to defendant a requiring conditions approved have decisions court several ,Interestingly

 In .person other that with relations intimate in engage to intends he if status criminal his of person

 revoking court trial the of decision the affirmed court appellate the ,46Schwarz .v Kaminski rel ex State

 probation his inform to him requiring condition a with comply to refusing for probation s’defendant the

 officer probation the that so person another with relationship intimate an beginning before officer

 Moreover .offender sex convicted a was defendant the that knew person other the that ensure could

 community of condition a as ,ordered was child a of rape of convicted defendant a 47Autrey .v State in

 have not) 2 and consent explicit her or his without anyone with contact sexual have not) 1 to custody

 corrections community his and therapist his of approval prior without anyone with contact sexual

 they that determined ,conditions two these of imposition the upholding in ,court appellate The .officer

 reasonably was partner sexual adult an choosing even because prohibitions related-crime valid were
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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124

 safety the for responsible be may partners romantic potential “that fact the to due crime his to related

.minors visiting or in-live of

 Procreation .E

 as — protects Constitution the that us tells contraception and abortion concerning litigation The

 from function procreative the — privacy of right constitutional understood judicially a of aspect an

 parole and probation of area the in However .justified well extremely unless regulation government

 a as bearing-child of restriction the approved has that case appellate no revealed has research ,law

 as activity procreative restricting court trial a of order an affirmed has court appellate an which in esinstanc few very found has research ,Moreover .offender female a for release supervised of condition

 across decisions court although ,Nevertheless .offender male a for release supervised of condition a

 for reasons the ,condition particular this disallowing generally in consistent been have country the

.jurisdiction to jurisdiction from varied have so doing

 probation a ,status present its to right this of development the preceded that case California a In

.48down struck was married being without pregnant becoming from woman a prohibiting condition

 that and ,robbery of convicted been had probationer the that reasoning s’court the to central was It

People ,case California subsequent a In .pregnancy and robbery between relationship no was there

 precluding condition a of imposition the barred again once court appellate California a ,49Pointer .v

 directly was instance that in condition the though even ,children bearing from probationer female a

.probation on placed was she which for offense the to related

 rejected and diet vegetarian calorie low strict very a in believed defendant The .children her for tionnutri proper the regarding beliefs rooted deeply but strange developed had defendant the ,Pointer In

 suffered children The .regiment dietary this follow children her that insisted She .protein of forms all

 child of convicted was defendant The .diet this of result a as defects physical and malnutrition severe

 of another that potential the and diet this following in insistence s’defendant the of Because .abuse

 of term the during conceive to not her ordered court trial the ,malnutrition suffer would children her

.probation her

 was condition this that argued defendant The .court trial the of condition this appealed defendant The

 appellate The .procreate to and privacy to rights fundamental her of restriction unconstitutional an

 the which for offense the to related it that in ,reasonable was condition this that acknowledged court

 that noted further court the ,Nevertheless .endangerment child ,is that ,convicted was defendant

 the that found court the ,instance this In .reasonableness its determining to addition in overbroad blyimpermissi is condition the whether determine also must court the ,grounds constitutional on lengedchal is and right fundamental a of exercise the upon impinges probation of condition a whenever

 ,child future a of health and life the protecting :wit-to ,condition particular this imposing for purpose

 to right fundamental s’defendant the to subversive less restrictions alternative by achieved be could

.probation of condition this invalidated court appellate the Thus .procreate

 of conditions invalidated have courts appellate other several ,rendered was decision this Since

 court appellate Florida a 50State .v Thomas In .procreate to right s’defendant a restricting probation

 of term the during pregnant become to not probationer a ordering probation of condition a struck

 for offense the to relationship no bore it that grounds the on married was she unless probation her

 an 51Ferrell .v People In .criminality future to related reasonably not was and convicted was she which

 activity any in engaging from probationer a prohibiting condition a invalidated court appellate Illinois

 court a forbad statute state a that grounds the on pregnancy causing of potential reasonable the with

States United In .probation of condition a as control birth of form a use to probationer a ordering from

 appellate the ,53State .v Trammell in ,Finally .wife his to than other child another conceiving from tionerproba a prohibited that condition a struck Appeals of Court Circuit Eighth States United ,52Smith .v

.pregnant become not defendant the that condition a impose not could court trial the that held court
Status in Changes and ,Modifications ,Conditions

7 Chapter

125

 defendant the cases these of each in and probation of condition a as child a conceive to not tionerproba a order to decision s’court trial a affirmed have ,however ,courts appellate of couple a Only

 was ,children his abusing of history a had who ,defendant the ,54Kline .v State In .male been had

 father not he that ordered court trial The .child a of mistreatment criminal degree first of convicted

 .program treatment management anger and counseling drug a completed he before children any

 this that clear was It .condition this of imposition the affirmed court appellate Oregon the appeal On

 the because ,Moreover .convicted was he which for offense the to related reasonably was condition

 condition this that found court the ,programs treatment certain completing upon contingent child eranoth conceiving made but again children having ever from him ban permanently a not did condition

.procreate to right fundamental his on infringe impermissibly not did

State In .procreate to father a of right the restricting condition a upheld has court appellate other One

 five for probation on placed and nonsupport criminal of convicted was defendant the ,55Oakley .v

 a had had he that and intentional and running long was support child pay to refusal his that ,portedsup had he which of none ,children nine had had defendant the that noted court trial The .years

 on while “ordered judge trial the probation of condition a as Therefore .incidents criminal of history

 the had he that demonstrates he unless children more any have cannot defendant the ,probation

“.had already he children the supporting is he that and them support to ability

 Court Supreme Wisconsin the Nevertheless .condition this of imposition the appealed defendant The

 on imposed condition anomalous this ,law the for disregard his manifesting record troubling dinaryextraor the and children nine his of victimization ongoing s’defendant the of light in that concluded

 broad overly not was prison of sanction punitive and restrictive more far the facing felon convicted a

 because that stated court the Moreover .rehabilitation s’defendant the to related reasonably was and

 nine current his support to refusing intentionally not by condition this satisfy could defendant the

 the serve to tailored narrowly was condition this ,law by required as children future any and children

 court the matter this of hearing-re its in Nevertheless .prison than rather probation through fendantde the rehabilitating on and children their support parents having of interests compelling s’State

 to related reasonably was and circumstances extraordinary on based was holding this that stressed

.convicted was defendant the which for offense the

 can right this whether resolved finally be to yet has it Thus .parole or probation of condition a as ateprocre to right s’one restricting of propriety the on rule to yet has Court Supreme States United The

 this invalidated have courts various although Nevertheless .circumstances certain under infringed be

 underlining ,condition a such enforcing of impracticality the including ,reasons various for condition

 constitutional fundamental a is procreate to right the that assumption the is decision s’court each

.condition this validating for interest compelling a strateddemon has state the whether determining for test scrutiny strict a apply will court the that and right

Travel and Restrictions Territorial .F

 in reside to or travel concerns Constitution the by protected right ,important but ,specific-non Another

 as invalidated usually are ,challenged when ,conditions Banishment .choosing own s’one of place a

 entails generally banishment Nevertheless .56offense the to related not as and policy public against

 of condition a as restrictions Geographical .57state entire an or country the leave to ordered being

 be must case each Instead .unconstitutional se per not are banishment than less are that release

.58drawn narrowly is restriction calgeographi the whether determine to atmosphere total and circumstances ,facts own its on analyzed

 been invariably have parole or probation of condition a as citizen .S .U-non a deport to orders ,Also

 infringes impermissibly court the by action said that grounds the on principally ,invalid be to held

 United the formerly (Enforcement Custom and Immigration States United the of authority the on

 court a of example One .59determination that make to) Service Naturalization and Immigration States
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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126

 appellate Utah a ,case this In .60Arviso .v Utah of State is condition deportation a disallowing decision

 had he after States United the to return not defendant a that order s’judge trial the that held court

 was it since Constitution States United the of Clause Supremacy the contravened deported been

 Immigration] then [the to delegated as Congress States United the of authority the within exclusively

 United the into enter not could or could person a whether determine to Service Naturalization and

.States

 a violating without denied be well may parolee a of instigation the at travel to requests ,However

 parole federal the challenged protestors war ,61Sigler .v Berrigan In .offender the of right constitutional

 it because upheld was prohibition This .Vietnam North to trip a make to permission of denial s’board

 necessary was it because and States United the of interests policy foreign the with consistent was

 if Nevertheless .responsible was it whom for those supervise to duty its fulfill to board the for order in

 the on predicated been solely had permit travel a offender the deny to board parole the of action the

 the of action the scrutinized closely more have would court the then ,speech s’offender the content

.board parole

 ,goals rehabilitative to linked firmly where survive may region or city a within travel on limitation The

 relates or convicted was defendant the which for offense the to relationship reasonable a bears it if

 appellate an 63Sicher .v States United in Thus .62parolee or probationer the of criminality future the to

 her from permission without ,Pennsylvania in ,counties Northampton and Lehigh enter not could eroffend the ,release supervised of condition a as that court district federal a of order the upheld court

 were defendant the if that evidence ample was there that found court appellate The .officer probation

 return to likely extremely be would she ,youth her shaped that associates and location the to return to

 by rehabilitation her promote to intended clearly was limitation territorial this Since .crime of life a to

 criminal further in engage to her cause likely most would that influences the from away her keeping

.proper was condition this of imposition the that held court the ,activity

 geographic specified a within remain to parolee or probationer a requiring condition a ,Moreover

 For .authority s’board parole or s’court the of exercise valid a as upheld been generally has region

 probationer the that condition a upheld Court Supreme Montana the ,64Moody .v State in ,example

 ,addition In .officer parole and probation her from permission without district assigned her leave not

 on Depending .state another to relocate or travel to right a have not does parolee or probationer a

 Adult for Commission Interstate the of rules the under eligible is parolee or probationer the whether

 the of possessions and territories the of all almost and states fifty all which in ,Supervision Offender

 not may or may state one in offenses criminal a of convicted person a ,members are States United

 in convicted parolee or probationer a for supervision courtesy provide will state a whether minedeter to order in Compact Interstate the of use the ,Also .state different a to transfer to entitled be

.65banishment constitute not does state another

 in unreasonable deemed be may supervision of condition a as imposed restrictions Geographical

 ,Minnesota ,Paul .St in lived who ,defendant a ,66Franklin .v State In .purpose and breadth its of light

 neighboring s’Paul .St ,Minneapolis of city the enter not to supervision of condition a as ordered was

 Court Supreme Minnesota The .restrictive unduly was it that arguing ,appealed defendant The .dentsinci domestic several in involved been had defendant the where site the ,Minneapolis in located plexcom apartment certain a visiting from defendant the keep to was condition this of purpose The .city

 the consider must court the ,invalid presumptively not were exclusions geographical while that noted

 .achieved be to sought purpose the to relation in exclusion

 from defendant the preclude to was condition this of effect the that noted court the ,case this In

 defendant the that ,services church attending as such ,Minneapolis in activities certain in engaging

 broader much was condition this that noted court the ,addition In .doing to accustomed been had

 apartment the visiting from defendant the preventing of purpose the achieve to be to needed it than

 the and rights fundamental s’defendant the on infringement potential s’condition the Given .complex
Status in Changes and ,Modifications ,Conditions

7 Chapter

127

 existed nexus insufficient an that concluded court the ,infringement that for justification of paucity

 of preservation the or rehabilitation s’defendant the and Minneapolis from exclusion the between

.safety public

 Incrimination-Self .G

 Fifth her or his waive to parolee or probationer a required that supervision of condition a ,Thus .selfher or him against testify to not right constitutional s’person a lessen or void not does Conviction

 appellate circumstances some Under .67invalid be would incrimination-self against right Amendment

 s’individual the of infringement an constitutes reporting-self such Whether .government the to tioninforma certain report to parolee or probationer a required that condition a upheld have courts

 is information the whether) 1 :factors three on depends incrimination-self against right constitutional

 right the invokes individual the whether) 3 and incriminating is information the whether) 2 ,compelled

.incrimination-self against

 information incriminating furnish to required be could probationer a circumstances what under ifiedclar ,returns tax on disclosure-self regarding conditions probation examining ,appeals of courts Two

 return tax a in found evidence incriminating only the and evasion tax of convicted been now had dantdefen the since that reasoned had court district The .68privilege Amendment Fifth her claiming outwith returns tax file to ordered was probationer a ,Conforte .v States United In .herself or him about

 defendant the entail not would form tax accurate and completed a filing ,matters tax to relate would

 reasoning the rejecting in ,court appellate The .government the to evidence incriminating furnishing

 contained potentially return tax a that observed ,condition this down striking and court district the of

.forth so and ,prostitution ,gambling illegal as such ,esoffens criminal other for also but matters tax for just not defendant a incriminate would that evidence

 ,However .69returns tax amended file to ordered was probationer a ,McDonough .v States United In

 ,return the on information accurate and complete furnish defendant the that specify not did court the

 appellate the ,case this In .incrimination-self against right Amendment Fifth his waive he that nor

 not did condition this that noted court appellate The .condition the of imposition the upheld court

 right his waive to nor ,government the to evidence incriminating report to defendant the compel

 and right Amendment Fifth his invoke still could probationer the Instead .incrimination-self against

 the such As .incriminatory consider might he that return tax the on questions certain answer to refuse

.testimony compelled considered be not could return tax a of filing mere

 could probation on person a although that recognized Court Supreme the ,70Murphy .v Minnesota In

 that ,State the ,incrimination-self against right Amendment Fifth her or his waive to compelled be not

 he if ,probationer the and probationer a to question incriminating an ask could ,officer probation a ,is

 Amendment Fifth her or his that complaint any waive would ,question the answered voluntarily she or

 for probation granted been had defendant the Murphy In .violated was incrimination-self against right

 been had defendant the ,offense this of commission the to Prior .imprisonment false of offense the

 imposed court trial the that conditions the of One .girl teenage a murdering and raping of suspected

 ,counseling in While .counseling offender sex attend defendant the that was case probation his in

 then therapist The .girl the murdered ,indeed ,had he that therapist his to admitted probationer the

 defendant the that requested officer the and admission this regarding officer probation his contacted

 statement the that admitted defendant the officer probation his with visiting While .office her to report

.girl ageteen the of murder the of him convict to used was statement This .true was therapy in made had he

 .therapist his to made he statement the about officer probation his by interviewed being to prior dizedMiran been have should he that Court Supreme States United the before argued defendant The

 in introduced been have not should statement incriminating his that argued defendant the ,Moreover

 Amendment Fifth his of violative was officer probation his by questioning the because trial murder his
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

7 Chapter

128

 his in was defendant the time the at that noted Court Supreme The .incrimination-self against right

 in not was he Since .revoked been have could probation his ,office the to report to failed had bationerpro the if though even so was This .custody of form any under not was he ,office s’officer probation

.warning Miranda a administered been have not need he that held therefore Court the ,custody

 incriminating his of introduction the whether concerning issue the to turned next Court Supreme The

 other In .executing-self not is incrimination-self against right the ,ordinarily that stated Court the ,overMore .response incriminating an elicit may that question a ask to free is agent state a ,cumstancescir most in ,that noted Court The .rights Amendment Fifth his violated trial murder his at statement

 when that concluded Court the Thus .waived is it or right this invoke expressly must person a ,words

 he ,right Amendment Fifth his asserting without guilt his admitted openly Murphy in probationer the

.murder for trial his in introduced be could statement this that held Court the Hence .tionincrimina-self against right his violate would question the to response any that compliant any waived

 probationer a if implications legal the concerned Murphy in reached never Court the that issue The

 it that grounds the on officer probation his by propounded question a answer to refused explicitly

:stating by Murphy in footnote a in matter this upon touched Court The .him incriminate might

 a in used be not may answers required the that recognizes it as long as ,system probation its isteradmin sensibly hence and questions incriminating even to answers on insist validly may state] A[

 a ,circumstances such Under .incrimination of threat the eliminates thus and proceeding criminal

 and “,stake at be not would testimony compelled his of result a as immunity to right s’probationer

 to refusal a for probation revoking from state a prevent would Constitution Federal the in nothing

 as silence s’probationer the using from or probation of condition express an violated that answer

71“. . . . violated been have probation of tionscondi other whether determining in fact of finder a by considered be to factors of number a of one

:stated further Court The

 ;crime a of conviction his of reason by protection] amendment fifth [this lose not does defendant A

 incriminating makes he time the at probation on or imprisoned is defendant a that notwithstanding

 a for trial subsequent a in inadmissible are they compelled are statements those if ,statements

72“.convicted been has he which for than other crime

 the and issue final this resolve completely not did Murphy .v Minnesota in Court the ,Nevertheless

 this with confronted when courts appellate other perplexed often more has footnote cited above

 probationer a if whether issue the with struggled have courts Thus .73them aided has it than issue

 and compelled be still can statement a ,right Amendment Fifth her or his invokes) parolee or(

 or (probationer a Must? prosecution criminal another not but proceeding revocation a in introduced

 answer to compelled be to order in case another in prosecution from immunity granted be) parolee

 an answer to refusal the Can? officer) parole or (probation her or his to question incriminating any

 or his revoke to grounds be still crime another to probationer the link may that question incriminating

?probation her

 .principles legal several establish does Murphy .v Minnesota ,questions unresolved these Despite

 or his by interviewed being to prior warning Miranda a to entitled not is parolee or probationer a ,One

 she or he can nor; action criminal another in herself or him incriminate to compelled be cannot roleepa or probationer a ,Moreover .release her or his of conditions the concerning officer supervision her

 statement that ,officer supervision her or his from question a to responds voluntarily parolee or tionerproba a if ,Finally .incrimination-self against right Amendment Fifth her or his waive to required be

.purpose any for used be can

 concerning question unresolved the examined have courts several ,Murphy in decision the Since

 another to probationer the link would that question incriminating an answer to refusal a whether
Status in Changes and ,Modifications ,Conditions

7 Chapter

129

 defendant the which in dilemma This .parole or probation her or his revoke to grounds be could crime

 s’person the of revocation a to lead may so do to refusal the and offense criminal new a for ecutionpros a to lead may ,demand the with complies she or he if ,which question a answer to compelled is

 court recent Two” .case penalty “or” situation penalty classic “a as to referred is parole or probation

.75Antelope .v States United and 74State .v Chapman are situation penalty ableunaccept an create may condition certain a of imposition the whether examined have that decisions

 having after years ten of term a for probation granted been had defendant the ,State .v Chapman In

 and in participate “to ,)SOTP (Program Treatment Offender Sex a attend to required was he ,tionproba s’defendant the of condition a As .child a with indecency of offenses two with charged been

 to also and” ,therapist offender sex the by given direction and ,guidelines ,treatments all with comply

.(CPS (Services Protective Child by administered offenders for program therapy group a attend

 next his at and officer supervision s’defendant the to admission this relayed therapist The .pervisionsu community on placed was he which for offenses two the to prior girls young other two lestedmo sexually had he that group therapy and therapist group his told defendant the therapy During

 this made had he that confirmed he officer his by admission this about asked when report regular

 supervision his to information contact and names’ girls the gave even probationer The .admission

 victims the contact to able were they and police the to information this all conveyed officer The .officer

.girls other these abused sexually had defendant the that verification get and

 the at suppressed statements his have to motion a through sought defendant The .child a with cyindecen of acts other two with charged was defendant the investigation subsequent the on Based

 his making to prior warnings Miranda his given been not had he that grounds the on trial second

 plea a entered thus defendant the and motion his denied court trial The .therapy group in admissions

.prison in years twenty to him sentenced court trial the time This .charges new two the to guilty of

 community of conditions the of terms the under that arguing ,conviction his appealed defendant The

 against right his waiving between choose to forced was he court trial the by imposed supervision

 in ,Appeals Criminal of Court Texas The .program treatment offender sex the with cooperate to fusedre had he because revocation suffering or offenses criminal other to admitting and incrimination-self

 invoked affirmatively defendant the whether was question critical the that stated matter this reviewing

 classic the “within fell case this in facts the whether ,not if and ,incrimination-self against right his

 upon relying for punishment with threatened is person a where ,is that ,exception” situation penalty

 his assert affirmatively to responsibility the of him relieve would which ,privilege Amendment Fifth his

.privilege Amendment Fifth

 Court The .admissions criminal the made he when incrimination-self against right his invoked tivelyaffirma not had defendant the that agreed parties all that noted Appeals Criminal of Court Texas The

 applied been had forced undue whether regarding analysis thorough a conduct to proceeded then

 determined initially Court The .will his against statements incriminating make to probationer the to

 be would probation s’defendant the that convey implicitly or expressly not did authorities state that

 there that stated Court the Moreover .privilege Amendment Fifth his invoke to chose he if revoked

 from defendant the drop automatically would he that indicated had therapist the that evidence no was

 direct a answer to refused he if) liberty conditional his jeopardize ,thus and (program treatment the

.conduct criminal uncharged about question

 directly defendant the asked never therapist the that observed Court the ,importantly more ,However

 the approached he that testified defendant the that noted Court the ,Instead .history sexual his about

 defendant the that showed record the that stated Court the ,Moreover .information this with therapist

 young the that hopes the in information incriminating this reveal to motivated was he that testified

 Since .acts his by suffered had they trauma the overcome to helped and identified be could victims

 defendant the that finding implicit s’court trial the support to record the in evidence ample was there
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

7 Chapter

130

 of threat external implicit or explicit any by not and ,conscience own his by speak to compelled was

 affirmatively not did defendant the since that held Appeals Criminal of Court Texas the ,punishment

 his denying in err not did court trial the ,incrimination-self against right Amendment Fifth his invoke

.police the and ,officer probation his ,therapist his to statements voluntary his suppress to motion

 of enforcement the that found system court federal the in decision appellate another Nevertheless

 United In .himself incriminate to compelled being defendant a in result could condition treatment a

 defendant the on imposed court district the that conditions the of One .probation years five to tencedsen was and pornography child of possession to guilty pleaded defendant the ,Antelope .v States

 (SABER (Recovery and Evaluation Behavior Abuse Sexual a in participate he that requirement a was

 .program

 to probationer the for was program SABER the completing successfully for requirements the of One

 to that contending ,requirement this with comply to refused probationer The .history sexual his detail

 his and crimes past reveal would he that risk the created immunity of assurance any without so do

 contention his with agree not did court district The .him prosecute to used be then could admissions

 his of part as history sexual detailed a give to failure for probation his revoked occasions two on and

 government the that contention his examined Appeals of Court Circuit Ninth the Finally .treatment

 the on release supervised and probation his conditioned it when right Amendment Fifth his violated

.autobiography sexual a of submission

 prove must defendant the ,claim Amendment Fifth a establish to that stated court appellate The

 (2 and incrimination of risk the carried government the by desired testimony the that) 1 :things two

 Fifth the that observed Court the Moreover .76compulsion to amounted suffered he penalty the that

 of danger appreciable and real a “of face the in invoked properly only was privilege Amendment

 privilege the ,speculative or ,unlikely ,remote were threat the if and apparent and particular sonablyrea was prosecution criminal future of threat the when invoked be only could It” .incrimination-self

 real “was incrimination of risk s’probationer the that concluded Court the case this In .77apply not did

 real a trigger would program SABER the in participation successful his that and” appreciable and

.incrimination-self of danger

 his exercise to elected he because penalties substantial impose “to sought had government the erwheth :wit-to ,inquiry incrimination-self the of prong second the examined next court appellate The

 that noting ,Court The” .himself against testimony incriminating give to not right Amendment Fifth

 as history sexual his detail to refusing for twice revoked been already had probation s’defendant the

 was he because violated was incrimination-self against privilege his that held ,treatment his of part

.78requirements disclosure s’SABER with comply to refusing for term prison longer a to sentenced

Minnesota in undecided left issue outstanding another the addressed have courts appellate Several

 a ,right Amendment Fifth her or his invokes) parolee or (probationer a if ,whether :wit-to ,Murphy .v

 criminal another not but proceeding revocation a in introduced and compelled be still can statement

 unless ,that concluded have issue this examined have that courts most that appears It? prosecution

 an elicit would release of condition a of violation a concerning probationer the to posed question the

 privilege Amendment Fifth his invoke cannot probationer the ,offense criminal new a to admission

 or probation of condition a violated she or he whether concerning question a answer to refuse and

.parole

 follow and officer probation the by inquiries all truthfully answer “to probation of conditions as quiredre was pornography child of possession of convicted defendant a ,79Locke .v States United in Thus

 program treatment offender sex a in participate “to and” officer probationer the of instructions the

 his used had he that admitted had defendant the ,examination polygraph a undergoing to Prior” .menttreat appropriate determine to instruments testing physiological of application the include may which
Status in Changes and ,Modifications ,Conditions

7 Chapter

131

 turn in admission This”* .form any in pornography obtaining or ,possessing ,viewing “from him hibitingpro conditions the of one of violation in stories erotic view to Internet the access to computer s’wife

 the of search forensic a conduct to approval s’court district the obtaining officer probation the to lead

 of images and stories erotic downloaded revealed which of analysis the ,computer s’wife s’defendant

 to sent was he and revoked was probation s’defendant the facts these on Based .pornography adult

.prison

 .incrimination-self against right Amendment Fifth his violated testing polygraph included that grampro treatment a in participation his requiring condition probation the that argued defendant The

 the since ,infringed been not had right Amendment Fifth s’probationer the that concluded Court The

 had he whether ascertain to attempted examination polygraph the of part as him to posed questions

 invoke only could probationer a that held Appeals of Court Circuit Fifth The .prosecution criminal turefu a for basis a as serve not could answers s’probationer the and probation his of conditions violated

 him exposing by probationer the incriminate would answer truthful a if privilege Amendment Fifth his

.crime different a for prosecution to

 In .Locke in Appeals of Court Circuit Fifth the as conclusion same the reached have courts Other

 a call could State the that held court appellate Florida a ,81State .v Perry In .proceeding criminal ratesepa a in incrimination of threat realistic no pose that probation to relevant matters concerning tionsques answer to required be may probationer a that held court appellate Kansas a ,80Uhlig .v State

 answer to refuse not could probationer the and witness a as proceeding revocation a in probationer

 information elicit not did that violation probation a disclose would answer the because just question a

 .v Packer in ,Finally .offense criminal separate a constituted that circumstances or conduct regarding

 from probationer a protects Amendment Fifth the while that held court appellate Indiana an ,82State

 not may she ,prosecution criminal subsequent a in her incriminate may that questions answering

 basic “regarding question answering avoid to proceeding revocation a in Amendment Fifth the invoke

“.probation her monitor effectively to necessary are which disclosures any and information identifying

Effect Legal Their and Conditions Specific Some .H

Notification Public or Shaming 1.

 of community the notifying least at or offender an shaming either of purpose the for release pervisedsu of conditions of imposition the concerns law parole and probation of field the in trend recent One

 “letter scarlet “as known better are types these of Conditions .conviction s’offender the of nature the

 throughout enacted been have laws notification public s1990 early the since ,addition In .conditions

 state from vary laws These .offenders sex of residence the of public the inform to order in country the

 be to offender sex convicted a near living residents requiring others and newspaper local a in lishedpub be offender sex a of residence the regarding information requiring laws some with ,state to

 is laws these of purpose legislative the Although .offender the of residence the of notified individually

 ,midst their in living offenders dangerous potentially of persons informing by community the protect to

 ,offenders these of identify the times oft because offender the shame to tendency a have laws these

 either ,public made are ,committed they crime the to description a and ,photograph their including

.Internet the on website a or newspaper a through

 personally to offender an requires that one is parole or probation of condition controversial more A

 regarding divided sharply are country the in courts Appellate .public the to guilt her or his proclaim

 letter scarlet of imposition the approved have jurisdictions Several .condition a such of validity the

 to ,driving drunk of convicted ,probationer a ordered court trial a ,83State .v Goldschmitt In .conditions

 of condition a as” ,Licensee Restricted - .I.U.D Convicted “reading car his on sticker bumper a place

 a as examinations polygraph of administration the involving issues legal of discussion depth in more a For*

.Chapter this of .2.H.II § see ,supervision of condition
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

7 Chapter

132

Ballenger In .punishment unusual and cruel constitute not did it that and purpose rehabilitative cientsuffi a served it that stating ,condition this of imposition the upheld court appellate The .probation

 to probationer a requiring condition a of imposition the upheld court appellate Georgia a ,84State .v

“.CONVICT .I.U.D “words the with imprinted bracelet plastic pink fluorescent a wear

 In .conditions letter scarlet of imposition the disallowed have jurisdictions of number a Nevertheless

 that ,shoplifting of convicted ,probationer a on condition a imposed court trial the ,85Heckler .v People

 constitutional state on relying ,court appellate The .quarters living actual his outside was he everwhen probationer theft felony a as status his of statement printed ,bold a bearing shirt-T a wear he

 further Court The .privacy to right inalienable his upon impinged condition this that found ,grounds

 ,home his outside was he whenever shirt-T this wear to him required which ,condition this that noted

 and employment gainful procuring as such ,probation his of aims other certain undermine would

.employed staying

 four a home his at erect to defendant a ordered court trial a ,86Meyer .v People ,case another In

 .Here Lives Felon Violent A! Warning “read that lettering high inch eight with sign foot eight by foot

 inflict to was sign this of purpose the that found Court Supreme Illinois The!” Risk Own Your at Enter

 probation for provisions statutory the that noted further Court The .probationer the on humiliation

 this disallowed Court the ,Thus .punishment a as humiliation include not did Illinois of State the in

 imposition the rejected Appeals of Court York New the ,87Letterlough .v People in ,Finally .condition

 sign fluorescent a drove he vehicle any of plate license the to affix defendant the that condition a of

 ,punishment of form new a create to authority the had Legislature the only and rehabilitation s’dantdefen the to related reasonably not was condition this that grounds the on” dwi convicted “stating

.humiliation :wit-to

 the disallowed have that courts Those .country the of jurisdictions the in split a indicate cases These

 trial the that grounds the on so done usually have conditions shame or letter scarlet of imposition

 state a whether question the open leaving thus; so doing in authority statutory its exceeded court

 letter scarlet a impose to court trial a authorize and statutes probationary its amend could legislature

 invalid be to condition the found Court the instance that in and grounds constitutional on condition terlet scarlet a of imposition the disallowed has California of State the in Court one However .condition

 .grounds constitutional federal on not and grounds constitutional state on

 condition this that grounds the on so done have condition this upheld have that jurisdictions Those

 crimes future committing from offender the deterring by probation of aims rehabilitation the furthers

 that held also have courts These .convicted was she or he which for one the as nature same the of

 cruel against proscription s’Amendment Eighth the violate not do conditions letter scarlet or shame

 the to Amendment Eighth the violates condition letter scarlet a whether concerning issue the so termat this on rule to yet has Court Supreme States United the Nevertheless .punishment unusual and

.resolved conclusively be to yet has Constitution States United

Polygraphs 2.

 state and federal both in widespread quite become has examination polygraph a to submit to roleepa or probationer a requiring release of conditions certain of imposition the decade last the Over

 the considered generally have Courts .offenders sex for utilized especially is condition This .courts

 investigative an as) 3 and; board parole or court the by imposed supervision of conditions other forceen to means a as) 2; counseling or treatment to aid an as) 1 :purposes three for polygraphs of use

 have jurisdictions of number a in courts though Even .crimes further of commission the detect to tool

 the approved necessarily not have courts ,release of condition a as polygraphs of use the approved

 an as only polygraphs of use the limited have courts Some .purposes stated above the of all for use

 of use the condoned have courts other while offender an of treatment rehabilitative the further to aid

.purposes expansive more much for polygraphs
Status in Changes and ,Modifications ,Conditions

7 Chapter

133

 Midway .child a with indecency of offense the for probation on was defendant the case this In .88froRen parte Ex is purposes stated above the of all for use its approved has that case court state One

 to submit to him requiring by conditions his modified court trial the ,probation his of term the through

 ,condition this of imposition the appealed defendant The .months six every examination polygraph a

 treatment his further to was condition this impose could court the that purpose only the that arguing

.counseling ordered court his completed already had he that and offender sex a as

 other certain with compliance monitor to helped condition polygraph the that noted Court The .ditioncon this impose could court trial a which for purposes various the considered court appellate The

 .children young with contact s’defendant the restricting :wit-to ,court trial the by imposed conditions

 criminal discovering and deterring at aimed was condition this because that noted also Court The

 reasonably was condition the ,minors with contact unsupervised during occur to likely most conduct

 for condition this of imposition the approved court appellate the Thus .criminality future to related

 this that contention his rejected and probationer the of treatment the further to than other reasons

.invalid was condition modified

 a as examination polygraph a of imposition the allow now jurisdictions numerous though Even

 revocation a in results its of use the allowing in hesitant been have courts ,supervision of condition

 be could defendant a although that stated court appellate the ,89State .v Carswell In .proceeding

 forced be not could he ,probation of condition a as examination polygraph a to submit to required

 in Moreover .proceeding court subsequent a in admissible be results the that stipulate to agree to

 pretest s’polygrapher a to made admissions while that held court appellate Texas a ,90State .v Wright

 polygraph of course the in obtained were admissions these that evidence ,admissible were interview

 oral as such interests penal against admissions certain while ,Thus .inadmissible were examination

 during ,interview pretest a during made crime new a committed had defendant the that confessions

 a in admissible be may examination the after interview an during or ,itself examination polygraph the

 a to pursuant obtained were admissions these that explained be cannot it ,proceeding court further

.examination polygraph

 entitled not is examination polygraph a to submit to ordered been has who parolee or probationer A

 for probation on placed and minor a with conduct sexual of counts two of convicted been had dantdefen the ,91Levens .v Arizona In .questioned being to prior warning Miranda a administered be to

 of program any to submit “to defendant the required Court the probation of condition a As .years ten

 assist to ,polygraph the . . . to limited not but including . . . assessment physiological or psychological

 “.monitoring case and planning ,treatment in

 firearms having admitted defendant the ,examination polygraph the of interview test-pre the During

 and statement this about officer supervision s’probationer the told polygrapher The .home his in

 and firearms four found and home s’defendant the of search a conducted subsequently officer the

 a filed defendant The .probation revoke to motion a initiate to proceeded then officer The .ammunition

 should examination test-pre the of part as made he statements the that arguing ,suppress to motion

 his received not had he because home his of search the of basis the form to used been have not

.polygrapher the by questioned being to prior warnings Miranda

 differ not did examination polygraph a of part as questions certain answer to and information taincer provide to probationer a requiring that noted issue this considered that court appellate The

 or information same this providing and officer supervision her or his to reporting probationer a from

 no was there that noted Court the Moreover .officer her or his by elicited questions to responding

 supervision s’person the by questioned being to prior warnings Miranda administer to requirement

 probationer the that noted Court the Finally .probation of conditions the with compliance about officer

 Court the Accordingly .custody police in was he while place took interview the that argue not did

 the to determinative not was warnings Miranda s’probationer the administer to failure the that held
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

7 Chapter

134

 of search the of basis the formed that and polygrapher the to gave he statements the of admissibility

.home his

 her or his waive individual the that requirement a constitute not does release of condition a as inationexam polygraph a to submit parolee or probationer a that requirement the that held also have Courts

 pleaded defendant the 92Lee .v States United In .incrimination-self against rights Amendment Fifth

 .pornography child possessing and computer a by pornography child transporting knowingly to guilty

 three for release supervised by followed incarceration months 57 to sentenced was defendant The

 submit “defendant the that was court district the by imposed release of conditions the Among .years

 the at examiner certified a by administered be to examination ,examination polygraph random to

“.Officer Probation States United the of discretion and direction

 Fifth his violated condition the that arguing ,condition this of imposition the appealed defendant The

 the that observed court appellate The .incrimination-self for potential the to due right Amendment

 condition that of violation the and ,condition release a with compliance his about examination graphpoly a during asked is release supervised on person a when upon infringed not is Amendment Fifth

 noted court appellate the ,Moreover .prosecution criminal future a for basis the as serve not could

 that stated Court the Instead .questions incriminating answer to him require not did condition this that

 his invoke to right the retained still defendant the ,proceeding criminal future a in defendant the inateincrim would that answer an for called that examination polygraph a during asked were question a if

 that upheld Appeals of Court Circuit Third the such As .silent remain and privilege Amendment Fifth

.93condition particular this of imposition s’court district

*Volunteer Unpaid or Paid -- Condition a as Work 3.

 .issues liability potential create they ,upheld routinely are conditions such While .work service munitycom perform or/and employment hold to parolees or probationers require to practice common a is It

 respondeat of rules normal ,job the on injury causes or injured is who employee paid a of case the In

.liability create may ,does subordinate a what for responsible is superior the that ,wit-to; superior

 be not may Volunteers? liable be would who ,assignment work volunteer a of case the in ,However

 may protection compensation s’Worker .insurance medical or liability agency community by covered

 other the on ,Texas .95workers injured for plan compensation state a under probationers covers torilystatu Minnesota .insurance liability for fee a pay to offenders requires 94Ohio .volunteers to apply not

 compensation workers from service community performing probationers excludes specifically ,hand

.96coverage

 could volunteer service community a that likely is it ,guidance for precedent no yet as is there While

 Would .injury the redressing of capable defendant no find then could who party a to harm grievous do

 be volunteers insuring agency an in placements make to or insure to failure Would? protection anceinsur for arranging also without placement a arranging for liable be officer parole or probation a

 avoid To? immunity of principles legal traditional by unprotected ,thereby ,and ministerial considered

.offenders by work volunteer cover to insurance purchase might agencies probation ,liability potential

 those share officers parole and Probation .immunity qualified a enjoy boards Parole .immunity soluteab an by liability from protected usually are judges ,condition a as work requires court the Where

 may liability individual Nevertheless .discretion professional exercising are they as insofar immunities

 parole or probation the if or service community of supervision the in arising incidents for incurred be

 .site work or program service community a of selection the in discretion her or his exercises officer

 Under .law state by determined be largely would not or liable be would officer an whether Generally

 qualified or absolute either have would acts discretionary their performing in officers laws state most

 have or indifference conscious with performed be to have would act discretionary the or immunity

.liabilities tort specific of treatment fuller a for 5 Chapter See*
Status in Changes and ,Modifications ,Conditions

7 Chapter

135

 of act an for liable found be to officer an for likely less be would It .97negligence gross constituted

.negligence simple

Extradition of Waiver 4.

 an contesting of that – right constitutional another relinquish to have may defendant the ,state eranoth to move to parolee or probationer a allow to permitted be may jurisdiction a though Even

 of state the in probation on placed was defendant the 98Nobles .v Goode In .proceeding extradition

 being of condition a as ,Nevertheless .Georgia of state the in live to permission granted but Colorado

 and Georgia to moved ,waiver the to agreed defendant The .return to defendant the wanted ever radoColo of state the if extradition waive to required was defendant the ,state the of out move to allowed

.probation of conditions the violated then

 his that Georgia in argued defendant The .arrest his for warrant a issued Colorado of state The

 Court Supreme Georgia The .it sign voluntarily not did he because invalid was extradition of waiver

 Since .extradition of waiver a sign to defendant the requiring action s’Colorado of state the approved

 the ,grace of act an as so did but Georgia to move to him allow to have not did Colorado of state the

 summoned ever were he if extradition waive to required be could defendant the that concluded Court

.Colorado of state the to back

 Extradition Criminal Uniform the of provisions the contravene not did release of condition a as ditionextra waive parolee a that requirement a that found York New in court a ,decision court another In

 to required was ,facility Correctional State York New a in inmate an been had who ,offender the ,99donGor .v People In .states various the between proceedings extradition governed which ,)UCEA (Act

 waived expressly that condition a included which Supervision Parole to Release of Certificate a sign

 ,Memphis the by arrested was he ,crimes these of occurrence the after year A .York New in micidesho several of suspected was he ,paroled been had offender the After .extradition resist to right his

 New of State the to returned ,extradition of waiver the on based and authorities police Tennessee

.York

 court a in argued parolee The .UCEA the adopted had York New and Tennessee of states the Both

 the of terms the violated parole of condition a as extradition of waiver required the that York New in

 UCEA the of procedures statutory the that determined matter this reviewed that Court The .UCEA

 in forth set procedures the to strictly conform not need extradition of waivers and exclusive not were

 Court The .officer parole his by him to explained been had it of aspect every and each after traditionex of waiver the signed parolee the release his to prior that noted further Court The .100UCEA the

 would status his that was derived benefit the ,waiver the sign to chose inmate the when that stated

 not would he ,waiver the sign to not chosen he had for ,inmate an not and parolee a of that become

 was waiver the that determined Court the ,make to his was choice the Since .released been have

.101valid therefore and made knowingly and voluntarily

Requirements Registration Offender Sex 5.

 last the during justice criminal in developments notable more the of one ,earlier mentioned As

 federal and state These .laws registration offender sex of enactment the been has decades several

 was who girl old-year-seven a after named were ,Law s’Megan as known collectively ,enactments

 neighbor a by murdered and raped brutally was and 1994 in Jersey New in home her from kidnapped

 ,midst their in living was offender sex a that aware were neighborhood the in residents the nor ganMe of family the neither that discovered later was it When .offender sex convicted twice a was who

 of presence the of neighborhoods informing enacted be laws notification that outcry an was there

to ,mandated even or ,authorized are courts ,Law s’Megan’ states some Under .102offenders sex
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 of list the within fall not does conviction whose ,person a require may board parole or court the ,allyOccasion .supervision of condition a as offender sex a as register to parolee or probationer a require

 register to nonetheless ,crime sex a not is offense whose or registration necessitating offenses sex

 are country the throughout courts Appellate .parole or probationer of condition a as offender sex a as

 offenses sex not are either that crimes for register to individuals requiring of legality the with wrestling

 However* .required is registration which for offenses sex of list legislative the under come not do or

 Adam the of Provisions Notification and Registration Offender Sex federal the of enactment the with

 more much now are requirements registration state 2006 of Act Safety and Protection Child Walsh

.uniform

 of offense the for probation on placed was defendant the ,103Misiorski .v Connecticut of State In

 fourth the in assault sexual of conviction A .indecency public and degree fourth the in assault sexual

 judge the Nevertheless .law Connecticut under offender sex a as registration require not did degree

 bowling fellow and neighbors s’defendant the notify to department probation adult the authorized

 trial the of authority the contested defendant The .conviction s’defendant the of participants league

 Court Supreme Connecticut the Although .circumstances these under notification permit to judge

 the read court the ,register to offender sex degree fourth a require not did law Connecticut that noted

 view its supported Law s’Megan of purpose the that held court The .expansively Law s’Megan s’state

 to probation adult of office the of authority the limit not did statute notification offender sex the that

.one this as such cases in community the notify

 to offense sex-non a of convicted person a requiring judge trial a of order an examining when lematicprob more is it ,offenses registered as enumerated not are that offenses sex include to laws istrationreg offender sex applicable their interpreting in justification greater find can courts appellate While 

 ,depends condition a such uphold would court appellate an Whether .offender sex a as register still

 a impose to board parole or court trial a allowing authority statutory is there whether on ,part in

 trial the whether or offender sex a of convicted not was who offender an on requirement registration

 when release of conditions impose to authority general its on relying simply is board parole or court

.offender sex a as register to offense sex a of convicted not parolee or probationer a requiring

 supervision of condition special a that held have Washington of state the in courts the ,example For

 In .104issue at behavior criminal the to related directly is condition said unless imposed be cannot

 conditions offender sex certain of imposition the disallowed court appellate Texas a ,State .v Speth

 for crime a for punishment constitute would charges the of acquitted been had who person a for tionscondi offender sex of imposition the that reasoned court The .trial different a in charge sex a of tedacquit subsequently and assault aggravated for probation on placed been had who defendant a on

.105exonerated been had defendant the which

 to related directly not are that conditions of application liberal more a allow may jurisdictions Other

 courts appellate ,example For .probation on placed was defendant the which for offense criminal the

 ,Nevertheless 106”.criminal itself not is which conduct restrict or offense s’defendant the to related ablyreason are they whether of regardless ,defendant the supervise to need s’state the to related nallyratio are “they as long as imposed be may conditions general that held have Florida of state the in

 general regarding courts Florida of reasoning the extend would country the in courts certain whether

 ,Moreover .unsettled is ,offender sex a as registering as such ,condition special very a to conditions

 process due be still would there ,permitted so court appellate an if even ,chapter this in later noted as

.forth so and ,condition imposed the of severity the and offender the of state culpable the tweenbe proportionality ,evidence contravening present to opportunity an ,notice proper involving issues

 sex a as register to individual the require to order in status s’offender an determining of discussion fuller a For*

.Chapter this of VII § see ,offender
Status in Changes and ,Modifications ,Conditions

7 Chapter

137

 Internet the and Computers to Access on Restrictions 6.

 the ,Moreover .transactions business conducting even and ,information accessing ,others with catingcommuni of purposes for computers on reliance increasing the and Internet the of availability spreadwide the is years fifteen last the in occurred has that changes societal significant most the of One

 addition In .persons of number great a for workplace the in tool indispensible an become has Internet

 development software and ,maintenance systems information ,repair ,sales in jobs new creating by

 ,surprisingly Not .country this in employment of source major a become has technology computer

 the become have computers of use the curtailing and ,rooms chat and mails-e as such ,municationcom online of types new of use the restricting ,Internet the to access limiting release of conditions

 ,Furthermore .technology computer of forms emerging these to access abridging orders of plicationsim the with grapple to having level state and federal the both at courts with litigation new of subject

 access on ban complete a uphold to whether decide to had have Courts ,matter this considering in

 the to access on ban a uphold but computers of use the allow ,computers of use and Internet the to

.Internet the and computers both to access and use limited allow or ,Internet

 appellate federal by holdings examine will section this ,topic this understanding better to order In

 first the of One .courts appellate state various by holdings of examination an by followed courts

 and computers of use the on restriction a imposing of propriety the review to courts appellate federal

 the ,107Peterson .v States United In .Appeals of Court Circuit Second the was Internet the to access

 five to sentenced was and larceny bank of offense federal the to guilty of plea a entered defendant

 sex a for conviction state York New unrelated an had also had defendant The .probation on years

 to ability his banning was court district the by imposed probation of conditions the of One .offense

.condition this of imposition the appealed defendant The .officer probation his by approved if putercom commercial a use to him allowing only and Internet the or computers personal use or possess

 .offense sex a for conviction state previous a had had defendant the because Internet the or puterscom on ban a impose not could court district the that stated Appeals of Court Circuit Second The

 any had had incest of crime past s’defendant the that indication no was there that noted Court The

 Internet and computers that noted Court the Moreover .Internet the to or computers to connection

 information and communications of world modern the in indispensable virtually become had access

 the using from individual that banning imposed condition a have not could telephone a via actionstrans fraudulent of convicted person a that emphasized Court the ,analogy of way By .gathering

 imposed condition a have not could pornography of possession of convicted person a and telephone

 s’defendant the to related reasonably not was therefore and overbroad was restriction this that edconclud Court the such As .newspapers and ,magazines ,books all to access from him banning

.characteristics and history his or offense

 by followed prison in months 51 to sentenced was He .commerce interstate in pornography child pingship of convicted was defendant the ,108Rearden .v States United In .issue same this examined pealsAp of Court Circuit Ninth the ,Peterson .v States United in decision the rendering after years Two

 the on imposed court district the that release of conditions the of One .release supervised of term a

 access with computer a using or possessing from prohibited be defendant the that was defendant

 defendant The .officer probation the of approval prior without location any at service online any to

.overbroad and ,vague impermissibly ,unreasonable was it that arguing ,condition this appealed

 and information for Internet the of importance the recognized Appeals of Court Circuit Ninth The

 have could defendant the that provided condition the because that reasoned Court The .case s’dantdefen the in impermissible plainly was condition the that disagreed nevertheless but ,communication

 possibility the open left condition this ,officer probation his of approval the with Internet the to access

mail-e involved offense s’defendant the because that stated further Court The .access appropriate of
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 not did condition this that found it ,conduct similar to reverting from defendant the deter to was leasere supervised of goals important the of one and pornography child graphic quite of transmissions

 Circuit Ninth the Thus .necessary reasonably was than liberty of deprivation greater a involve plainly

 constitute not did it because Internet the to access prohibiting condition the upheld Appeals of Court

.ban complete a

 also Appeals of Court Circuit Eighth the ,decided was Rearden .v States United that year same the In

 one to guilty pleaded defendant the ,109Ristine .v States United In .holding two in issue this examined

 three by followed prison in months 27 to sentenced was He .pornography child receiving of count

 unannounced periodic to consent to had defendant the but ,computer a possess to him permit to ceroffi probation s’defendant the allowed release of conditions the of One .release supervised of years

 software or hardware of installation the to as well as computer his of inspections and examinations

.residence his at service Internet have not still could he ,computer a have to mittedper were defendant the if even that stated condition this Moreover .use computer his monitored that

 earlier rendered had it decision a on Ristine in holding its based Appeals of Court Circuit Eighth The

 access his restricting imposed been had release of condition identical nearly a ,Ristine with As .phypornogra child selling of convicted been had defendant the ,110Fields .v States United In .year the in

 Internet the used had defendants the that noted Court the ,Fields and Ristine both In .Internet the to

 exchanged had defendant the Fields In .pornography child access or download to merely than more

 upholding in factor saving the perhaps ,Moreover .girls underage with relations sexual arrange to netInter the use to attempted had defendant the Ristine in and Internet the through pornography child

 did question in conditions the that noted Court the that was Fields and Ristine both in condition the

.111computer a using from defendants the bar wholly not

 of court federal another decided were Fields and Ristine ,Rearden that year same the in ,Finally

 the to access banning totally condition a that holding for rationale its explained decision appeals

 months 59 to sentenced was defendant The .pornography child of possession of convicted was ,ogisttechnol system information an ,defendant the ,112Holm .v States United In .unreasonable was Internet

 the by imposed release of conditions the of One .release supervised of period a by followed prison in

:following the was court district

 to access allows that ,modem a with equipped is that computer a use or possess not shall You“

 software possess not shall You .services’ online ‘other or ,service mail-e ,Internet the of part any

 online for disks installation or ,mail-e including ,service online to connecting for used expressly

“.mail-e or services

 Appeals of Court Circuit Seventh The .release supervised of condition this challenged defendant The

 on ban total a be to intended was condition the extent the to that holding for reasons several gave

 than liberty s’defendant the on deprivation greater a imposed and broadly more swept it ,use Internet

 .difficult exceptionally life modern rendered ban a such that noted Court the ,First .necessary was

 find to likely most was and computers of field the in employed been had defendant the since ,Second

 that determined Court the ,prison from release his upon field computer the in employment gainful

 .rehabilitation his jeopardize and productivity future his affect could written currently as condition the

 various ,computers for filters providing technology new of advent the with that noted Court the ,Finally

 the that ensure to need the between ground middle a provide could use Internet monitored of forms

 in function to him allow to need the and purposes illegal for Internet the use again never defendant

.113world modern the

 conditions of validity the examining in lead the taken have courts appellate federal the that appears It

 are there that indicated has research and technology computer of forms new to access restricting

 .issue this addressed have that decisions courts appellate federal than decisions court state fewer

imposing for rationale s’court district a scrutinized closely more have courts federal the Moreover
Status in Changes and ,Modifications ,Conditions

7 Chapter

139

 have and rooms chat and ,mails-e ,Internet the to access and computers of use the on restrictions

 alternatives considered or implications policy public the of analysis thorough more a apply to tended

 have courts appellate state than Internet the and computers of use the of banning complete the to

 on ban complete a disallowing in is converge to seem decisions court state and federal Where .done

 federal several that is differ courts state and courts federal certain Where .114computers of use the

 ban complete a that argument s’offender an to sympathetic more been have appeals of courts circuit

.hardship undue an provide would Internet the to access on

 a on ban s’court trial the upheld court appellate intermediate an ,115Cloward .v Louisiana in Thus

 from ,minor a of purposes sexual for solicitation aided-computer of offense an of convicted ,defendant

 Washington of state the in court appellate one while ,Moreover .Internet the to access any having

 the to access from ,rape degree second of convicted ,defendant a forbidding condition a disallowed

 determined Court the because officer corrections community his of approval prior the without Internet

 upheld Washington of state the in court appellate different a ,related-crime not was condition the that

 the to access “having from ,molestation child degree second of convicted ,defendant a for condition a

 ordered been had defendant the because” therapist offender sex your by approved unless Internet

 as condition this deemed court appellate the and program treatment offender sex a in participate to

.116court the of order the with compliance monitor to necessary

 Internet the to access on bans disallowed generally have courts federal certain that reason One

 supervised of conditions tailoring in discretion broad have courts district while ,statutorily that is

 reasonably is than liberty of deprivation greater a involve not must imposed conditions the ,release

 on more and more relying people With .entail would Internet the to access on ban total a that fendantde a to costs economic and personal the considered also have courts federal However .117necessary

 with ,television on news nightly the watching or newspapers reading of instead news for Internet the

 ,government with and ,telephones than communication of form common more a becoming mails-e

 courts federal ,Internet the over transactions encouraging institutions educational and businesses

 s’today in impractical too be would Internet the to access on ban a that assertion the to open are

 to officers supervision allows that technology improved and new with ,addition In .society modern

 ,use computer of monitoring” remote “conduct to even to and use improper for computers search

 computer her/his on device filter a install to defendant a requiring that recognized have courts federal

 to officer supervision a of part the on burden onerous an create not does ban complete a of instead

 on communications or ,images visual ,materials improper to access prohibiting conditions monitor

 in courts sister their join will courts appellate federal more future the in that likely is It .Internet the

 begin will courts state and Internet the to access on ban total a disapproving in system federal the

 to access parolees and probationers allowing to regards in courts federal of reasoning the follow to

.118communications online

 AND ,REASONABLENESS ,VAGUENESS .III

LIMITATIONS AS OVERBREADTH

Vagueness .A

 conditions such Because .conditions ambiguous interpreting for standard no on settled have Courts

 seek may) attorneys their or (parolees and probationers ,rights constitutional upon impinge may

 context the in usually ,conditions of review Judicial .officers parole and probation from interpretation

 the prevent to order in ,or interpretations their of record written a make to useful it find would ,forethere ,Officers .conditions of interpretations’ officers incorporate generally will ,hearings revocation of

 condition vague the imposing board parole or court sentencing the request to ,review judicial for need

.interpretation an for
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 probation of condition particular a of imposition the reviewing court appellate an which to degree The

 to jurisdiction from varies purposes enforcement for vague too condition that deem would parole or

 imposing board parole or court the petition should officer that then ,condition a of interpretation ablereason and objective an make to unable is officer probation or parole a if Nevertheless .jurisdiction

 any remove to order in condition the modify to possibly and meaning its clarify to condition that

 tenor the understands officer an clearly how matter no ,However .it about ambiguity or vagueness

 the person the to condition the of understanding that convey not does officer the if ,condition the of

 ,her or him of expected is what understands offender the that ascertain and supervising is officer

 court sentencing the by imposed sanction any uphold would court appellate an that doubtful is it then

 *.condition that of violation a for board parole or

 a not or whether determine courts appellate how explained has that decision court recent One

 prison in months fifteen to sentenced and pornography child of possession of convicted was fendantde the case this In .119Guagliardo .v States United is vagueness for struck be will condition particular

 imposed court district the that conditions the of One .release supervised of years three by followed

 The .pornography adult legal including” pornography any “possess not he that was defendant the on

 inform to order in vague too was it that arguing ,condition this of imposition the appealed defendant

.possessing from him proscribed condition this material what him

 First unqualified an have not does probationer a while that noted Appeals of Court Circuit Ninth The

 have does probationer the” materials oriented sexually or stimulating sexually “to right Amendment

 inform to clear sufficiently are that release supervised of conditions to right process due separate a

 since that stated further Court The .prison to returned being his in result will conduct what of him

 is what understand reasonably cannot probationer a ,subjective entirely is” pornography “term the

 this given such As” .pornography “by encompassed is what about greatly differ can minds sonablerea that observed Court the Moreover” .pornography “on prohibition blanket a by encompassed

 will condition his broadly how determine cannot defendant a that held Court the ,vagueness inherent

 greater with condition a impose to court district the for case this remanded Court the thus and extend

.specificity

Reasonableness .B

 that and offender the of rehabilitation to related be condition a that requirements the to addition In

 from vary may Reasonable .enforced be can it before reasonableness of test general a meet tioncondi challenged a that insist to seem courts the ,rights constitutional with interfere unduly not it

 directly not does condition the if that hold jurisdictions some example For .jurisdiction to jurisdiction

 Other .120imposed be cannot condition the ,convicted was offender the which for offense the to relate

 directly conditions those if especially ,conditions of imposition the for leeway more allow jurisdictions

.121offender the of rehabilitation the to contribute indirectly or

.test a such is there because apparently ,fallen have conditions following The

.122violated was condition the when revocation probation deny to court the led icalcohol an was he that Evidence .years five for alcohol from abstain to ordered was probationer A 1.

 that condition on probation on placed was kickbacks accepting of convicted serviceman former A 2.

 The .hours 6200 or ,years three for compensation without work and assets personal all forfeit he

.123effect cumulative its in harsh unduly as down struck was condition

 counsel appointed-court of cost the for government the reimburse to ordered was probationer A 3.

 if excusable made not was it because unconstitutional held was condition The .translator a and

.124pay to ability the lacked probationer the

.Conditions of Explanation ,below See*
Status in Changes and ,Modifications ,Conditions

7 Chapter

141

 her keep to and house clean a maintain to probation of condition a as ordered was probationer A 4.

.125crimes drug and larceny for conviction her to rise gave which iorbehav s’defendant the to relate not did it because down struck was condition This .clean children

Overbreadth .C

 the to related reasonably be conditions the must only not ,release of conditions valid be to order In

 .overbroad be not also must conditions the but ,unambiguous and supervision of goals or offense

 a impose that those are conditions overbroad ,noted previously been has as ,system federal the In

 .126supervision of goals the achieve to necessary is than liberty s’defendant a on deprivation greater

 serve to tailored narrowly be to needs condition a that been has standard general the ,courts state In

 will it else or public the protecting and defendant the rehabilitating in interest compelling s’state the

.127overbroad being as invalidated be

 too is it terms its by if overbroad deemed be may condition a Moreover .128defendant the on someburden overly is it ,offense the to related though even ,if overbroad considered be may condition A

 supervision the give not does and prohibited is conduct which for activities to regards in categorical

 condition a Finally .129enforcement its in accommodation reasonable for allowing in leeway any officer

 is officer supervision a by monitoring or enforcement its for need the if overbroad deemed be may

.130necessary reasonably is than intrusive more

CONDITIONS OF EXPLANATION .IV

 Case .follow to expected are they conditions the of knowledge have must parolees and Probationers

 of copy a with offender the providing of practice regular the establishing of wisdom the suggests law

.132acts criminal prohibiting condition a infer generally will courts But .131conditions release the

 of that from duty that distinguishing ,conditions of explanation of issue the to speaks case One

 selling establishments” frequenting “from petitioner the forbade condition The .petitioner the to pliedap as vague unconstitutionally be to held was condition a ,133McCauley .v Panko In .informing merely

 petitioner the that evidence no was there since down struck was condition The .beverages alcoholic

.conditions plainex to duty a be may there that implies case This” .visit “meant” frequent “term the that understood

 unintentional avoiding in offender the assist to sufficiently conditions explain to duty a is there if Even

 for ,likely not is It .concept reasonableness a by limited be to apt is duty the of scope the ,violations

 probationer the ,appealed being was probation of revocation which in case Circuit Ninth a In .lationvio of type possible every against warn and anticipate to required be will officer the that ,example

 military foreign training that notice specific no had he that asserting by part in actions his defended

 ,violated was law no that admitted was It (.conditions of violation a as charged be would personnel

 the condemning judge the of comments the that satisfied was appeals of court The) .technically

 his of rid get to warning s’officer probation the with together ,mercenary a as life former s’probationer

 of expected was behavior what of probationer the notify to sufficient were comments other and ,guns

.134probation on while him

CONDITIONS OF MODIFICATIONS .V

 in change a is there whenever occur usually parole or probation of conditions the of Modifications

 unidentified previously a address to ,is that ,purposes rehabilitative for probation of condition ifiedmod a impose may board parole or court The .supervision under person the involving circumstances

a for sanction a apply to ,is that ,purposes punitive for or ,parolee or probationer the of need new or
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 occur may modifications the reason Another .parole or probation of conditions initial the of violation

 may conditions certain ,Finally .condition imposed previously a in ambiguity any resolve to order in is

 offender sex new a as such ,enactment legislative enacted newly a to conform to modified be to have

.requirement registration

 the assigned officer field the by or supervision under person the by requested be may Modification

 initiated be may modification the ,instances lesser In .board parole or court sentencing the by case

.protection public or rehabilitation of likelihood the enhance to supervision increased or tionsrestric additional seek officers field ,Typically .them extending or ,clarifying ,adding toward or ,tionscondi easing toward be may Modification .own its on board parole the or court sentencing the by

 normally is it ,hearings revocation initiate regularly may officers probation and parole Because

 conditions of changes or modification for need the suggest to right the have officers such assumed

 have themselves officers probation and parole ,jurisdictions few a In .board parole the or court the to

.conditions modify to power the

 of violation a filing of lieu in ,officer probation a for authority statutory provides Illinois ,example For

 intermediate of notice a offender adult or minor a on serve to ,discharge conditional or probation

 adult or minor the if that provides further authority statutory This .violation technical a for sanctions

 adult or minor the if and immediately imposed be shall they sanctions intermediate the accepts

 violation a court the with file immediately must officer the then ,sanctions intermediate the rejects

 the ,probation on defendant a places judge a if Texas In .135discharge conditional of or probation of

 supervision community the within programs different to probationer the transferring of purpose edlimit the for probation of conditions the modify to officer supervision the authorize also may judge

 the ,writing in modification the to agrees probationer the If .sanctions and programs of continuum

 conditions the and clerk district the with conditions modified the of copy a file must officer supervision

 then ,writing in modification the to agree not does probationer the If .modified as enforced be shall

.136modification for court the of judge the to case the refer must officer supervision the

 that clear is it if only but ,conditions the modify and ahead go may officer the ,jurisdictions these In

 on Commission Advisory National the past the In .officer the to given is conditions modify to authority

 carry to authorized be officers parole that recommended has Goals and Standards Justice Criminal

.137approval board parole pending modifications requested their out

 judges many ,however ,reality In .138authority of delegation improper an be would officer an by cationmodifi any ,contrary the to authorization statutory express an absent ,that hold country the in tionsjurisdic most ,function board or judicial a considered generally is act this Since .own their on tionscondi modify to officers authorize not do ,decisions court or legislation by either ,jurisdictions Most

 of details the specify to or ,conditions change or modify to power the officer the to delegate fact in do

 practice common a also is It .)treatment psychological for need the as such (condition imposed an

 probation the as conditions other such to “subject be may probationer the that provide to judges for

139“.impose to deem may officer

 must ,authorization specific without ,alone officer the by conditions probation changing or Modifying

 or modified be conditions that suggest to officer the for proper is It .possible all at if avoided be

 .change that make should board or judge the only ,authorized clearly otherwise unless but ,changed

 against protected best is officer the ,)situation emergency an of because or invalidity despite egationdel such on insists judge that because either (unavoidable is officer the by modification or change If

 inform to board or judge the to sent be should copy a ,done is this Once .writing in offender the by edaccept is condition the that sure making and writing in change or modification the putting by liability

.change the of authority this
Status in Changes and ,Modifications ,Conditions

7 Chapter

143

 because court or judge the by done be must changes or modifications ,possible as much As .cisionsde court or law by authorized clearly unless conditions change or modify not should officers ,sum In

.not does officer the whereas immunity absolute enjoy they

 is notice suggests law Case .modification for standards process due clear no be to appears There

 in instances those In .140hearing a to right the to as ambiguous is it ,however; necessary probably

 whether ,Moreover .141mandate this imposes usually statute state ,required be may hearing a which

 order in imposed conditions the of more or one violated offender the that showing a be must there

 so do may board parole or court sentencing the whether or supervision of conditions the modify to

.142law state by controlled largely is etysoci or offender the of interests best the in be would modification a such that determination a upon

 duty implied an of possibility the ,standards professional their raise officers probation and parole As

 a of need in obviously is parolee or probationer a ,example for ,If .arise may modification seek to

 ,negligence of act an is modification seek to failure that allege may—offender supervised equatelyinad the by injured—victim resulting a ,appropriate deemed originally that from supervision different

 authority supervisory the of aware be to officers for crucial is it ,reason this For .liability implying

.it to adhere and jurisdiction particular their by them granted

EXTENSION .VI

 the of nature severe the of because observed rigidly general in are limits These .statute by rizedautho ways specific in life s’offender the in intervene to state the allows offense an of Conviction

 of service once that is rule this of corollary A .individuals of rights the on impose they infringements

 not circumstances special absent (modification detrimental to subject not is it ,begun has sentence

 the over lost is jurisdiction ,served been has sentence a once that follows also It .143)here relevant

.offender

 is ,adopted not have courts the which ,possibility One? set originally duration the beyond finementcon actual of period a prolong to authority provide parole and probation of grants do extent what To

 at offender the freeing thus ,confinement of equivalent the as time parole and probation consider to

 street for credit give they which to extent the on vary states the While .period original the of end the

 parole or probation into entry that agreement is there ,confinement actual of period the against time

 the reimprisoning or imprisoning to given be may consideration which during time the extends status

.offender

 an against action take to has board parole or court the authority what concerning question The

 proceedings ,one In .situations several in arises expired has supervision of period the after offender

 when even ,case this In .term parole or probation the within parole or probation revoke to begun are

 long so effect given is decision new the ,period usual the within completed not are proceedings the

 who parolee a ,Thus .part s’state the on prosecution diligent of lack a to due not was delay the as

 is ,145hearing the delay that continuances seeks who probationer a or ,144supervision from absconds

 court Jersey New a ,Similarly .untimely are decision and proceedings the that object to permitted not

 was offender the period the during extended was parole Jersey New revoking for time the that held

 York New the though even ,parole on was offender the while imposed sentence York New a serving

.146sentence Jersey New original the with concurrent sentence the made court

 .conviction s’offender an after effect into comes law sentencing new a where arises also issue An

 penal new that 147held have courts California ,example For .occur to apt is result different a ,Here

 those for least at ,effect retroactive given be not may supervision parole of period the extending laws

post ex the of afoul run would otherwise do To .law prior of terms favorable more the under paroled

 .said Courts the ,Constitution the of clause facto
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TERMINATION .VII

 term the of conclusion the at automatically end not does parole that provides law parole federal The

 the provided statute The .hearing termination a after granted affirmatively until continues but ,ordered

 hearing the ,case that In .arose 148Thomas .v Robbins when years five within held be to had hearing

 before but ,hearing the after day the On .granted was parole after years half-one-and-five held was

 The .charge new a on arrested was Robbins ,termination on decision a made commission parole the

 .parole extend to decided and ,fact this to consideration give to file its reopened commission parole

 five after occurring anything consider to power without was commission the that argued Robbins

 ,disagreed Appeals of Court Circuit Ninth The .hearing termination the after ,event any in or ,years

.evidence vantrele consider—to expected was ,indeed—could commission the termination actual until that finding

 those to equivalent were cases such in followed be to procedures the that rule to on went Court The

 a deprive not does parole terminate to not decision the While .hearings revocation for provided

 make to appears statute the ,rights Morrissey activate would which ,liberty conditional his of parolee

 respect to unlikely is parolee the that finding affirmative an of absence the in automatic termination

 process some and ,benefit termination the of” expectation mere “a than more is there ,Thus .law the

.however ,standard Morrisey-than-less a choose well could courts Other .due clearly is

OFFENDER THE OF STATUS IN CHANGES .VIII

Notice of Change a Provide to Duty .A

 to required be may parolee or probationer a which through avenues legal three are there Generally

 regarding information provide to required be may offender An .status of change a of notice provide

 the of policy departmental a to pursuant) 2 or release of condition a as) 1 either status of change a

 requirements notification These .mandate statutory a with accordance in) 3 or 149agency supervising

 the ,board parole or court the to either changes status report to parolee or probationer a require may

.150party third a to even or ,offender the supervising officer

 affect may or supervision of conditions other the of enforcement the on bearing a have may that tussta in changes report to offender the requires condition the if true especially is This .appeal on heldup been have status of changes report to parolee or probationer a requiring conditions ,Ordinarily

 approved generally have Courts ,addition In .offender the rehabilitating successfully of likelihood the

 requires that offender the supervising agency or officer the by established policy administrative an

 have Courts .status s’offender the in changes any agency or officer the to report to offender the

 or judicial of usurpation improper an constitute not does policy administrative an such that deemed

 the to related necessarily and reasonably is policy a such that held have instead but authority board

.board or court the by imposed conditions the enforce to agency supervising the of authority

 provide) officer supervision his or (parolee or probationer a that mandate may statute state a ,Finally

 notification enacting been increasingly have legislatures State .status his in change any of notification

 ,example For .status their in change any on information provide to offenders sex requiring statutes

 a or officer probation adult or juvenile a if that providing statute a passed has Texas of state the

 receives offender sex a as register to law state under required person a supervising officer parole

 ,incarceration ,status job ,health physical s’person the in change a including ,person his of pervisionsu proper affects that manner any in changed has status s’person the that effect the to information

 enforcement law local appropriate an notify promptly shall officer supervising the ,release of terms or

 of status the on bearing information of sensitivity inherent the of Because .151change that of authority

 mandates the follow strictly officers parole and probation that recommended strongly is it ,offender an
Status in Changes and ,Modifications ,Conditions

7 Chapter

145

 information any of release the regarding policy administrative or ,order court ,statute a by establishes

 procedures office or ,judicial ,statutory the from deviate not to and status in change a concerning

.information such of disclosure the controlling

 authority parole or court the inform to entity governmental a of responsibility the be will it Sometimes

 the of responsibility the been has it 2007 1, October since ,example For .offender an of status the of

 Intranet Justice Criminal s’Enforcement Law of Department Florida the in post and database s’mentdepart the in offenders the identifying for system a develop to Corrections of Department Florida

 This .supervision community under are who” concern special of offenders felony violent “all of list a

 of offender felony violent “a be to determined been has status whose offenders of hearings quentsubse all and hearings appearance first at Florida in Courts the to available made is information

152“.concern special

Status of Determination .B

 of conditions the modify to decision the upheld generally have that holdings numerous the Despite

 ascertain to order in initially hearing a conduct must authority releasing or sentencing the ,stancescircum certain under that mandate does process due ,offender an of status the on based release

 impose to wants authority parole or court the when true particularly is This .offender an of status the

 habitation a of burglary of convicted was defendant a ,153Dretke .v Coleman in ,example For .victedcon was she or he which for offense to relate to appear not does that offender an on condition a

 defendant the parole on While .paroled later was defendant The .Texas in prison to sentenced and

 new these Despite .child a with indecency and child a of assault sexual aggravated for indicted was

 was parole his ,Nevertheless .assault misdemeanor of convicted only was defendant the ,charges

.reincarcerated subsequently was he and conviction assault the following revoked

 a in reside he that condition the on supervision mandatory on released later was defendant The

 on conditions additional two imposed board parole the later month A .employed until house halfway

 was parolee The .therapy offender sex attend and offender sex a as register he :wit-to ,release his

 he Although .conditions these of imposition the contest to hearing a or notice advance given not

 was parole his ,result a As .therapy in participate or enroll to failed he ,offender sex a as registered

.again once revoked

 the appealed then parolee The .denied was which court district federal in writ a filed parolee The

 of Court the ,issue this analyzing In .Appeals of Court Circuit Fifth the to writ his denying decision

 involved process due procedural to right a of claim a with dealing complaint a that stated Appeals

 not in interest liberty a had parolee the whether determine to had court the ,First .inquiry step-two a

 be to were this if that stated further court The .parole his on placed conditions offender sex having

 dispute not did Texas of state the because that noted court the ,Finally .them imposing before duresproce sufficient constitutionally provided state the whether was inquiry second the then case the

 given been never had parolee the that and conditions the imposing in process no provided had it that

.relief him grant must Court the ,conditions offender sex from free being in interest liberty a had roleepa the that established clearly law federal if then ,status offender sex his contest to opportunity the

 sex the that argued ,154Jones .v Vitek in holding Court Supreme States United the citing ,parolee The

 procedural mandated Amendment Fourteenth the of Clause Process Due the that parole of ditionscon basic the from departure dramatic a such presented parole his on placed conditions offender

 imposed state the ,Vitek in as that noted ,matter this examining in ,Appeals of Court The .protections

 modifying-behavior and intrusive involving ,therapy offender sex s’state the that found Court the ,overMore .process any him providing without parolee the on treatment and classification stigmatizing

 of Court Circuit Fifth the such As .Vitek in provided treatment the to analogous also was ,techniques

 in interest liberty a with defendant the provided Clause Process Due the that determined Appeals
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

7 Chapter

146

 therefore and conditioned was parole his which on treatment compelled and stigma the from freedom

.conditions such imposing before protections procedural provide to required was state the that held

Notifications Party Third .C

 third a inform defendant a that ,probation or parole of condition a as ,order may court a Occasionally

 an inform to parolee or probationer a orders court a When .criminal a as status her or his of party

 offense the on based be must restriction occupational an ,system federal the Under .restriction tionaloccupa an as to referred is this ,conviction criminal s’person the of employer potential or employer

 a) 1 (:that determines court the if only permissible is condition a such ,Generally .155conviction of

 relevant conduct the and occupation s’defendant the between existed relationship direct reasonably

 to necessary reasonably is restriction a such of imposition the) 2 (and conviction of offense the to

 defendant the ,restriction a such absent ,that believe to reason is there because public the protect

 or court the if also but; required is notification such whether ,officer parole or probation the of cretiondis the to leaving than rather ,board parole or court the of determination the be it should only not ,lyFinal .156convicted was she or he which for that to similar conduct unlawful in engage to continue will

 employment of types certain for required be should notification such that believe does board parole

 parole or probation the direct to guidelines specify should board parole or court the ,others not but

.157discretion s’officer the to notification employer of issues the leave simply not and officer

SUMMARY

 and probation of conditions of setting the concerning issues several examined has chapter This

 a when arise can problems ,conditions regular concerning dispute any rarely is there While .parole

 associated clearly not is or right constitutional fundamental a upon infringes either condition special

.courts the by treatment special given are” religion of ciseexer free “and” speech free “as such ,rights fundamental called-so The .purpose rehabilitative a with

 that liberty of concept our to essential so right any ,Court Supreme States United the of view the In

 .right fundamental a is system social and political our alter fundamentally would it with away do to

 given be will conditions such ,is that;” suspect “considered be always will areas these in Restrictions

 supplying upon dependent is condition a of validation Often .restrictions other than review stricter a

 with rehabilitation in interest s’government the link to information sufficient with court reviewing the

.condition challenged the

 This .placements volunteer of case the in particularly ,liabilities tort to rise give may conditions Work

.insurance agency by covered be may risk

 .not do jurisdictions most but ,conditions change or modify to officers authorize jurisdictions few A

 or unconstitutional be to out turn conditions such should attaches liability possible because tionscondi change or modify not should officer an ,decisions court or law by authorized clearly Unless

.party third a or offender the to injurious

 is notice that suggests law case but ,modification for set been have standards process due clear No

.standard constitutional a by not ,law state by governed is natestermi actually parole/probation when ,Also .freedom of deprivations further constitute they causebe upon frowned generally are parole or probation of extensions ,Moreover .necessary probably

 valid a deemed been generally have status of change a of board parole or court the or officer sionsupervi his either inform to parolee or probationer a necessitating requirements reporting ,Finally

 probation ,Nevertheless .agency supervisory or board parole/court the of authority the of exercise

 to parolees or probationers requiring mandates statutory any of aware be to need officers parole and

 probationer a circumstances some Under .status their in change any concerning information provide
Status in Changes and ,Modifications ,Conditions

7 Chapter

147

 parole or court a before status s’person the determine to right process due a have may parolee or

 extreme exercise must officers supervision ,Finally .release of conditions certain impose can board

.parolee or probationer a of status in change the regarding information disclosing in caution

NOTES

 ,Templar .v Poth ,also see); 1975 .Cir th9 (259 d2 .F 521 ,Gonzales-Consuelo .v States United See 1.

.(1971 .Cir 10 (330 .d2 .F 453

 they if determine to evaluated are release supervised of conditions special system federal the In 2.

 the and offense the of circumstance and nature the) “1 :factors different four to related reasonably are

 criminal to deterrence adequate afford to “need the) 2” ,defendant the of characteristics and history

 need the) 4 and” ,defendant the of crimes further from public the protect to “need the) 3” ,conduct

 the in treatment correctional other or ,care medical ,]training [needed with defendant the provide to“

 274 ,Paul .v States United also see); 1994) (2(-)1)(a (3553 § .C .S .U 18 See” .manner effective most

2001. 19, November delivered 00-41299, .No ,)2001 .Cir th5 (115 d3 .F

 a that ruled Court Oregon the where) 1979 (838 d2 .P 597 133, .App .Or 41 ,Maas .v State See 3.

 because revocation for basis the as serve not could officer probation a by added condition probation

.conditions add to authority no had officer the

.(1973) 471 .S.U 408 ,Brewer .v Morrissey See 4.

.(1994 ,Tyler - .App .Tex (3 d2 .W .S 875 ,State .v Lacy See 5.

 Bureau ,Statistics Parole and Probation See .parole on were 798,200 nearly and probation on dictionjuris local or ,State ,Federal under were adults 4,237,000 approximately 2006, 31, December On 6.

.html.pandp/bjs/gov.usdoj.ojp.www at Justice of Department .S .U ,Statistics Justice of

 ruled court appellate Florida a which in ,)1992 .App .Fla (1202 d2 .So 593 ,State .v Knight See 7.

 the with connected officers to respect show to “probationer the requiring condition probation a that

 or acceptable was conduct what of probationer the inform to vague too was” system justice criminal

.unacceptable

.(1999 – .App .Ind (1255 d2 .E .N 721 ,State .v Carswell See 8.

.(2006) 2193 .Ct .S 126 ,California .v Samson See 9.

.(1999 .Cir th7 (839 d3 .F 186 ,Schave .v States United See 10.

.(1999 .Cir rd3 (358 d3 .F 186 ,Warren .v States United See 11.

.(2001 .App .Colo (652 d3 .P 43 ,Forsythe .v People see ,level state the at pleprinci general this of application the for); 2007 .Cir th9 (732 d3 .F 476 ,Sales .v States United See 12.

.(1973) 471 .S.U 408 ,Brewer .v Morrissey See 13.

 still inmates ,setting prison a in even that recognized has Court Supreme States United The 14.

 Court Supreme the) 1974 (2963 .Ct .S 94 ,McDonnell .v Wolff In .rights fundamental certain retain

 institutional the of exigencies and needs the by diminished be may rights his though “that stated

 for imprisoned is he when protections constitutional of stripped wholly not is prisoner a ,environment

 “.crime a

.(1971 .Y.N.D .S (1294 .Supp .F 327 ,Reed .v Sobel See 15.

1304. at .Id 16.

1303. at .Id 17.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

7 Chapter

148

1306. at .Id 18.

 654 ,Lowe .v States United ,also See .)1970 .Cal .D .N (749 .Supp .F 311 ,Procunier .v Hyland See 19.

 .Common Pa 45 ,Parole and Probation of Board Commonwealth .v Barlip); 1981 .Cir th9 (562 .d2 .F

.(1982) 766 d2 SE 295 38, .App NC 59 ,Camp .v State); 1979 (1338 .d2 .A 405 458,

750. at) 1970 .Cal .D .N (749 .Supp .F 311 20.

750-751. at .Id 21.

.(1971 .Cir th10 (330 d2 .F 453 ,Templar .v Porth See 22.

 71, .J .L Duke 1976 ,Supervision Parole and Probation on Limitations Amendment Fourth ,Note 23.

.(1976) 75

.(1971 .Cir th10 (76 at d2 .F 453 ,Templar .v Porth See 24.

 627 ,Patterson .v States United ,Accord .)1971 .Cir th10 (334 330, d2 .F 453 ,Templar .v Porth See 25.

.(1981) 1378 .Ct .S 101 ,denied .cert ,)1980 .Cir th5 (760 d2 .F

.(1979 .Cir th9 (921 d2 .F 596 ,Furukawa .v States United See 26.

 .(1979 .Cir th5 (144 d2 .F 605 ,Tonry .v States United See 27.

.(1995) 87 d2 .E .N 650 410, .Mass 420 ,Power .v Massachusetts of Commonwealth See 28.

.(2008 2 .Div .App .Wash (3850490 WL 2008 ,Zimmer .v State See 29.

 d2 .W .S 754 ,State .v Crabb ,also see); 1997 .Cir th5 (667 d3 .F 124 ,Bird .v States United See 30.

.(1988 ,[.Dist st1 [Houston - .App .Tex (742

 482 d2 .W .S 645 ,State .v Whitehead); 1982 .App .Ct Alaska (159 d2 .P 640 ,State .v Rich See 31.

.(1982) 50 d2 .S.Y.N 452 501, .Div .App 89 ,Warren .v People); 1982 .App .Cr .Tex(

 112, .Crim .Tex 168 ,State .v Glenn); 1973 (26 d2 .A 301 263, .App .Md 17 ,State .v Watson See 32.

.(1976) 746 d2 NE 346 211, .App .Ind 169 ,State .v Dulin); 1959 (763 d2 .W .S 327

.(1999 .Cir th7 (839 d3 .F 186 ,Schave .v States United See 33.

.(2007 .Cir th9 (858 d3 .F 510 ,Soltero .v States United See 34.

 and probationers with as ,Nevertheless .)1987 (2400 .Ct .S 107 ,Shabazz of Estate .v Lone’O See 35.

.(1996 .Cir th7 (472 d3 .F 95 ,Farrey .v Kerr See .program treatment prison basedfaith a in participate to compelled be cannot prisoner a that held uniformly have courts the ,parolees

 587 ,State .v .M .L ,also see); 1946 (444 d2 .E .S 38 335, .Va 185 ,Commonwealth .v Jones See 36.

.(1992 - .App .Fla (1202, d2 .So

 affirmed); 1997 .Cir nd2 (1068 d3 .F 115 ,Probation of Department County Orange .v Warner See 37.

.(1999 .Cir nd2 (120 d3 .F 173

 Appeals of Court York New the which in) 1996 11, June .Y.N (317180 WL ,Coughlin .v Griffin See 38.

.County Orange .v Warner in Appeals of Court nd2 the of that to ruling similar a made

 2007, 7, September filed 06-15474, .No ,)2007 .Cir th9 (705 d3 .F 504 ,Kemna .v Inouye See 39.

2007. 3, October amended

.(1982) 800 .S .U 457 ,Fitzgerald .v Harlow See 40.

.(1999 .Cir nd2 (757 d3 .F 171 ,Travis .v Montero also see); 1991 (9 .S .U 502 ,Waco .v Mireles See 41.

.(1989 .Cir th9 (497 d2 .F 7884 ,Tyler .v Babcock See 42.
Status in Changes and ,Modifications ,Conditions

7 Chapter

149

 .Or 282 ,Martin .v State also See); 1982 (694 d2 .E .S 287 855, .App .Ga 160 ,State .v West See 43.

 .v State and) 1968 (254 .Rptr .Cal 72 483, d2 .App .Cal 266 ,Peeler re In); 1978 (536 d2 .P 580 583,

.(1983 .App .Ct .La (950 d2 .So 428 ,Thomas

 316 ,Oklahoma .v Skinner); 1976 (1335 d2 NE 372 195, d2 .App Ohio 53 ,Livingston .v State See 44.

.(1967) 290 .Rptr .Cal 64 623, d2 .App .Cal 256 ,Dominguez .v People); 1942 (535 .S.U

 456 d.2S 362 ,State .v Michalow); 1980 .App .Ct .Dist .Fla (46 d2 .So 386 ,State .v Wiggins See 45.

.(1978 .App .Ct .Dist .Fla(

.(2001 .Wis (164 d2 .W .N 630 ,Schwarz .v Kaminski .rel ex State See 46.

 .N 568 ,Schwartz .v Krebs ,also see); 2006 – 3 .Div .App .Wash (580 d3 .P 150 ,Autrey .v State See 47.

 requiring condition a approved court appellate the where) 1997 .App .Wis (127 d2 .Wis 212 26, d2 .W

 his from permission obtain and discuss to daughter his assaulting sexually of convicted defendant a

.relationship sexual a in engaging to prior officer probation

,State .v .M .L also See); 1967 (290 .Rptr .Cal 64 627. d2 .App .Cal 256 ,Dominguez .v People See 48.

 .(1992 - .App .Fla (1202, d2 .So 587

.(1984 .Dist st1 .App .Cal (357 .Rptr .Cal 199 ,Pointer .v People See 49.

.(1988 .,Dist st1 .App .Fla (1113, d2 .So 519 ,State .v Thomas See 50.

.(1995 .Dist th4 .App .Ill (992 d2 .E .N 659 ,Ferrell .v People See 51.

.(1992 .Cir th8 (960 d2 .F 972 ,Smith .v States United See 52.

.(2001 .App .Ind (283 d2 .E .N 751 ,State .v Trammell See 53.

.(1998 .App .Or (697 d2 .P 963 ,Kline .v State See 54.

 .Wis (760 d2 .W .N 635 at affirmed hearing-re ,)2001 .Wis (760 d2 .W .N 629 ,Oakley .v State See 55.

.(2001

 ;(years five for state from banishment) (1930 (95 .W.N 231 187, .Mich 251 ,Baum .v People See 56.

 State ,also See .)neighborhood another to move) (1930 (397 .W .N 232 4, .Mich 252 ,Smith .v People

 678, .App .Ga 159 State .v Flick); 1967 (699 d2 .W .N 154 381, .Minn 278 ,Young .v Halverson rel ex

 ,Rhodes .v Carchedi); 1980 (923 d2 .E .S 262 324, SC 274 ,Gilliam .v State ,)1981 (58 d2 .E .S 285

.(1982 Ohio .D .S (1010 .Supp .F 560

 .So 582 ,State .v McCreary ,also see); 1985 .Cir rd3 (954 d2 .F 761 ,Abushaar .v States United See 57.

 ,Hamrick .v Terry ,also See .)1967 .Minn (699 d2 .W .N 154 ,Young .v State and) 1991 .Miss (425 d2

 be defendant the that condition a upheld court appellate the which in ,)2008 .Ga (256 d2 .E .S 663

 upheld was condition this ,However .one except Georgia of state the in counties all from banished

 throughout victim the following been had and stalking of convicted been had defendant the because

.state the

.(2006 – .App .Wis (165 d2 .W .N 713 ,Stewart .v State See 58.

 627 ,State .v Martinez ,also see); 1981 - .App .Cr .Tex (287 d2 .W .S 613 ,State .v Hernandez See 59.

.(1993 .App .Fla (542 d2 .So

.(1999 – .App Utah (894 d2 .P 993 ,Arviso .v Utah of State See 60.

 See .)1974 .Cir .C .D (514 d2 .F 499 d’aff ,)1973 .C .D .D (130 .Supp .F 358 ,Sigler .v Berrigan See 61.

 certain from theft of convicted person) (1982 .App .Crim .Ala (329 d2 .So 423 ,State .v Dukes ,also

 302 81, .App NC 62 ,Churchill .v State); term probation during store that of out stay to ordered store
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

7 Chapter

150

 In ,see But .)officer probation of permission with bus by traveling unless restaurant adjoining and tionsta bus from away stay to ordered station bus at trespassing of guilty driver cab) (1983 (290 d2 .E .S

 ,Constitution California the under ,affirming) (1979 (562 .Rptr .Cal 158 141, .d3 .App .Cal 97 ,White re

.(travel intrastate of” right human basic “the

.(2006 .Sup (857 d2 .S .Y .N 812 ,Coleman .v People See 62.

.(2000 .Cir rd3 (289 d3 .F 239 ,Sicher .v States United See 63.

.(2006 .Mont (662 d3 .P 148 ,Moody .v State See 64.

 probationers state of out of supervision and transfer the for allowing rules the on information For 65.

.org.interestatecompact.www at Supervision erOffend Adult for Commission Interstate the of rules the review to directed is reader the ,parolees and

.(2000 .Minn (79 d2 .W .N 604 ,Franklin .v State See 66.

 st1 (49 d3 .F 242 ,Davis .v States United ,also see); 1984 (420 .S.U 465 ,Murphy .v Minnesota See 67.

.(2006 .Kan (634 d3 .P 144 ,Gary .v State and) 2000 .Cir

.(1980) 1012 .S .U 449 ,denied .cert ,).Cir .th9 (869 d2 .F 624 ,Conforte .v States United See 68.

 .v Halverson rel ex State ,also See 1979. .Cir th7 (19 d2 .F 603 ,McDonough .v States United See 69.

State); 1981 – .App .Ga 58, .E .S 285 ,State .v Flick); 1967 (699 d2 .W .N 154 381, .Minn 278 ,Young

 ,Ohio .D .S (1010 .Supp .F 560 ,Rhodes .v Carchedi); 1980 – .Car .So (923, d2 .E .S 262 ,Gilliam .v

.(1982

.(1984) 420 .S.U 465 ,Murphy .v Minnesota See 70.

437. at .Id 71.

427. at .Id 72.

 judgment ,)1993 .Cir .th7 (118 d3 .F 9 ,Ross .v States United); 1992 .Cir .nd2 (978 d2 .F 957 ,chumMea .v Asherman see ,matter this resolving in had have courts problems the of examples For 73.

.(1998 Idaho (1245 d2 .P 952 ,Crowe .v Idaho and); 1994 (1124 .S.U 511 ,grounds other on vacated

 .(2003 – .App .Cr .Tex (1 d3 .W .S 115 ,State .v Chapman See 74.

.(2005 .Cir th9 (112 Appx.Fed 65 ,Antelope .v States United See 75.

.(1977) 801 .S .U 431 ,Cunningham .v Lefkowitz See 76.

.(1983 .Cir th9 (1234 d2 .F 696 ,r’Comm .v McCoy See 77.

 Probation the with cooperate “to probationer a requiring condition a of imposition the upheld pealsAp of Court Circuit First the which in ,)2001 .Cir st1 (49 d3 .F 242 ,Davis .v States United See 78.

 the that reasoning” ,release supervised of period his during interviews and investigations all in Officer

 that and compulsion to amount not did truthfully questions answer and appear to obligation general

 the at him incriminate might that him to posed question any challenge to free still was probationer the

 .occurred it time

.(2007 .Cir th5 (764 d3 .F 482 ,Locke .v States United See 79.

.(2007 .App Kan (894 d3 .P 170 ,Uhlig .v State See 80.

2001. .Dist th5 .App .Fla (1072 d2 0.S 778 ,State .v Perry See 81.

.(2002 – .App .Ind (733 d2 .E .N 777 ,State .v Packer See 82.

,State .v Lindsay ,also see); 1986 .App .Ct .Dist .Fla (123 d2 .So 490 ,State .v Goldschmitt See 83.

.(1992 .Dist th4 .App .Fla (652 d2 .So 606
Status in Changes and ,Modifications ,Conditions

7 Chapter

151

.(1993 .App .Ga (793 d2 .E .S 436 ,State .v Ballenger See 84.

.(1993) 1049 th4 .A .C 13 681, d2 .Rptr .Cal 16 ,Heckler .v People See 85.

.(1997) 315 .E .N 680 372, d2 .Ill 176 ,Meyer .v People See 86.

.(1995 .Y.N (146, d2 .E .N 655 ,Letterlough .v People See 87.

 jurisdictions Other 1999. ,].Dist th14 [Houston .App .Tex (557 d2 .W .S 999 ,Renfro parte Ex See 88.

 ;(1999) 914 d2 .P 977 4, .Kan 267 ,Lumley .v State :follows as are crime sex a of convicted is tionerproba the where probation of condition a as examinations polygraph of validity the upheld have that

 .App .Or 131 ,Tenbusch .v State); 1995 .App .Ct .Dist .Fla (906 d2 .So 657 ,State .v Cassamassima

 1311, d3 .App .Cal 208 ,Miller .v People and); 1995 (133 .Ct .S 116 ,denied .cert 1077, d2 .P 886 634,

.(1989 .App.Ct.Cal (587 .Rptr .Cal 256

.(1999 – .App .Ind (1255 d2 .E .N 721 ,State .v Carswell See 89.

.(2005 ,Texarkana – .App .Tex (235 d3 .W .S 154 ,State .v Wright See 90.

.(2007 1 .Div .App .Ariz (1222 d3 .P 152 ,Levens .v Arizona See 91.

.(2003 .Cir rd3 (206 d3 .F 315 ,Lee .v States United See 92.

 be to right constitutional Amendment Fifth s’defendant the violate not did condition testing graphpoly mandatory a that held which ,)2008 .Cir th9 (988 d3 .F 524 ,Stoterau .v States United See 93.

 .P 152 ,Levens .v Arizona ,also see;” himself against witness a be to case criminal any in compelled“

.(2007 .Cir th5 (764 d3 .F 482 ,Locke .v States United and) 2007 1 .Div .App .Ariz (1222 d3

.(g (2951.02 § .Ann Code .Rev Ohio 94.

.(West (3.739 § .Ann .State .Minn 95.

.(c (16 § 42.12, Article .Proc .Cr of Code .Ann .Tex s’Vernon 96.

 ,also see); 2006 ,Worth Fort – .App .Tex (870 d3 .W .S 207 ,Morales .v .al et County Tarrant See 97.

42.20. Article .Proc .Cr of Code .Ann .Tex s’Vernon

.(1999 .Ga (122 d2 .E .S 518 ,Nobles .v Goode See 98.

.(1998 .Sup (631 .S .Y .N 762 ,Gordon .v People See 99.

.(1995 .D .S (922 d2 .W .N 527 ,Buskirk Van .v State See .law federal ,facilitate and ,to plementalsup are subject the on regulations state and controlling is law federal ,extradition of area the In 100.

 of condition a as extradition of waiver a of validity the upheld have that decisions court Other 101.

 103 d2 .F 330 ,Kern .v Cook ,)1981 – .App .Cr .Tex (757 d2 .W .S 610 ,Johnson parte Ex are release

.(1975 .Cir th8 (58 d2 .F 510 ,Authority Adult California .v Forester and ,)1964 .Cir th5(

 offender sex other several enacted has Congress ,Law s’Megan first the of enactment the Since 102.

 Sex Lychner Pam and ,Kanka Megan ,Wetterling Jacob “the as known collectively ,acts registration

 Sex the in found now are enactments various These .Programs Notification and Registration Offender

 Act Safety and Protection Child Walsh Adam the of Provisions Notification and Registration Offender

.(109-248 .L .P (2006 of

.(1999 – .Conn (59 d2 .A 738 ,Misiorski .v Connecticut of State See 103.

.(1999 – .App .Wash (472 d2 .P 90 ,Schmeck .v Washington of State See 104.

 another or reversed ,)1998 ,].Dist th14 [Houston – .App .Tex (13 d2 .W .S 965 ,State .v Speth See 105.

.(1999 – .App .Cr .Tex (530 d3 .W .S 6 ,State .v Speth in reason

.(2000 – .App .Fla (158 d2 .So 754 ,State .v Greenwood See 106.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

7 Chapter

152

.(2001 .Cir nd2 (79 d3 .F 248 ,Peterson .v States United See 107.

.(2003 .Cir th9 (608 d3 .F 349 ,Rearden .v States United See 108.

.(2003 .Cir th8 (692 d3 .F 335 ,Ristine .v States United See 109.

.(2003 .Cir th8 (1025 d3 .F 324 See 110.

 Circuit Second the ,)2002 .Cir nd2 (122 d3 .F 287 ,Sofsky .v States United in that however Note 111.

 a inflicted condition the and restrictive too still was officer probation his of approval the without ternetIn the or computer a using from defendant the prohibiting condition a that found Appeals of Court

.necessary reasonably was than liberty s’defendant the on deprivation greater

.(2003 .Cir th7 (872 d3 .F 326 ,Holm .v States United See 112.

 512 ,Silvious .v States United See .computer a of use from defendant a banning totally release of tioncondi disallowed has issue this examined have that appeals of courts federal all almost date To 113.

 United In .condition a such upheld has appeals of court federal one Only .)2008 .Cir th7 (364 d3 .F

 though even that held Appeals of Court Circuit Fifth the) 2001 .Cir th5 (115 d3 .F 274 ,Paul .v States

 and computers use to defendant the permitting proviso a have not did question in condition the

 court district the that say not could Court the ,officer probation his of approval the with Internet the

 Seventh the Silvious in Nevertheless .recidivism prevent to and public the protect to necessary ablyreason was use Internet and computers on ban absolute an that determining in discretion its abused

 stated ,use Internet on ban total a for providing condition a disallowed it though even ,Court Circuit

“.cases some in justified be might condition a such that possibility the out ruled not have we “that

 court appellate the which in) 2002 – .App .Idaho (1227 d3 .P 53 ,Wardle .v State however See 114.

 convicted but child a of abuse sexual with charged ,defendant the that order s’court trial the upheld

 .household his from computers his all remove ,battery of offense misdemeanor included lesser the of

 and lap his on sit minor the had defendant the that showed facts the since that reasoned court The

 his in computers no possess he that requirement the justified this ,computer his on pornography view

 .home

.(2007 .Cir nd2 .App (356 d2 .So 960 ,Cloward .v Louisiana See 115.

 .P 170 ,Castro .v State ,further see); 2008 1 .Div .App .Wash (1262 d3 .P 184 ,Cain’O .v State See 116.

.(2007 3 .Div .App .Wash (78 d3

.(b (3563 § .C .S .U 18 also see); 2005 .Cir th10 (763 Appx.Fed 147 ,Vinson .v States United See 117.

 Court Circuit Tenth the which in ,)2005 .Cir th10 (763 Appx.Fed 147 ,Vinson .v States United See 118.

 circuit other most that noted ,Internet the to access restricting condition a examining in ,Appeals of

 of discretion the at lifted be could ban the where only bans Internet allowed had) 2 or release visedsuper of conditions as bans Internet total rejected either) 1 had issue this addressed had that courts

.officer probation the

.(2002 .Cir th9 (868 d3 .F 278 ,Guagliardo .v States United See 119.

 that held court appellate the which in) 1995 .Dist 2 .App .Fla (212 d2 .So 666 ,State .v Turner See 120.

 offense an for treatment and evaluation drug to submit to defendant the order not could court trial the

.related drug or alcohol not was which

 the restore or protect to designed is that condition reasonable any impose to court trial the thorizesau which ,)a (1 § 42.12, Article ,Procedure Criminal of Code Texas Annotated s’Vernon See 121.

.defendant the reform or ,rehabilitate ,punish or victim the restore or protect ,community
Status in Changes and ,Modifications ,Conditions

7 Chapter

153

 d2 .So 666 ,State .v Turner ,also See .)1967 .Cir th7 (10 d2 .F 353 ,States United .v Sweeny See 122.

.(1995 .Dist d2 .App .Fla (212

,Arthur .v States United ,Compare .)1980 .Cir th9 (893 d2 .F 627 ,States United .v Higdon See 123.

 misapplied who president bank former); (1979 (992 .S .U 444 ,denied .cert ,).Cir th4 (660 d2 .F 602

.(years two for salary without employment accept to required properly funds bank

 See .)1980 (903 .S .U 444 ,denied .cert ,).Cir th5 (1172 d2 .F 600 ,Jiminez .v States United See 124.

 529 228, .App .Wash 12 ,Langford .v State); 1979 (839 d2 .P 595 455, .App .Or 40 ,Asher .v State ,also

.(1974) 839 d2 .P

.(1994) 432 .App .Conn 33 852, d2 .A 636 ,Graham .v State See 125.

.(2003 .Cir th7 (872 d3 .F 326 ,Holm .v States United See 126.

.(2001 .Wis (760 d2 .W .N 635 ,Oakley .v State See 127.

.(2005 .Cir th7 (719 d3 .F 428 ,McKissic .v States United See 128.

 Court Circuit Second the which in ,)2001 .Cir nd2 (79 d3 .F 248 ,Peterson .v States United See 129.

 any possessing from defendant a prohibited categorically that condition a invalidated Appeals of

.overbroad and excessive as work at computer a including ,computer

 Court Circuit Second the which in ,)2004 .Cir nd2 (173 d3 .F 369 ,Lofshitz .v States United See 130.

 the required that condition a imposed had court district the which in case a remanded Appeals of

 controlled or owned equipment computer any of examinations unannounced to consent “to defendant

 of purpose the for equipment such of removal the “permit to him required that and” defendant the by

 with compared as efficacy their as well as techniques monitoring computer proposed the of cationsimpli privacy the evaluate to court district the for order in” investigation thorough more a conducting

.condition this with consistent condition a impose to then and ,filtering computer

 d2 .W .S 640 ,State .v Acosta); 1982 (787 d2 .E .S 296 239, .App .Ga 164 ,State .v Bennett See 131.

 of notice oral) (1982 (175 d2 .P 640 244, Ariz 131 ,Raines .v Meredith); 1982 .App .Crim .Tex (381

.(conditions probation for notice written be must but ,permissible conditions parole

 765 d2 .E .S 296 208, .App .Ga 164 ,State .v Shaw); 1982 (137 .E .N 437 ,State .v Joynes See 132.

.(act illegal barring conditions of list given not tionerproba (contra ,)1983 (473 d2 .W .S 647 238, .App .Ark 7 ,State .v Neely ,also see ,But .)law to enceobedi requiring condition of knowledge of source probation or parole on experiences past) (1982(

 explanation as well as Information .)1979 .Wisc .D .C (325 .Supp .F 473 ,McCauley .v Panko See 133.

 .Exec NY); Vernon (549.237 § .Stat .Ann .Mo , .g .e ,see; jurisdictions some in required statutorily are

.(McKinney) (4 (257 § Law

 .F 587 ,Dane .v States United ,also See .)1977 .Cir th9 (840 d2 .F 570 ,Dane .v States United See 134.

.(1978 .Cir th9 (436 d2

.(i (5-6-4 § 5, ILCS 730 ,also see); 7 (5-720 § 405, ILCS 705 See 135.

.(e (and) d (10 § 42.12, Article ,Procedure Criminal of Code Texas Annotated s’Vernon See 136.

 Standard ,Corrections ,Goals and Standards Justice Criminal on Commission Advisory National 137.

.(1973) 12.7

.(1991 .App .Fla (1294 d2 .So 586 ,D .L .T of interest the In See 138.

 appellate the which in ,)1999 – .Conn (595 d2 .A 738 ,Misiorski .v Connecticut of State See 139.

 conditions other any “obey defendant the that judge trial the by imposed condition a upheld court

“.probation adult of office the by imposed
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

7 Chapter

154

 .F 636 ,States United .v Forgues ,)1983 .Cir th7 (189 d2 .F 705 ,Warden .v States United See 140.

 Rinal in Appeal re In); 1982 .App .Crim .Tex (865 d2 .W .S 644 ,State .v Tyra); 1980 .Cir th6 (1125 d2

 App Ohio 2 ,Simpson .v State); 1981 .App .Ct (377 d2 .P 639 187, .Ariz 131 ,Action Juvenile ,County

 .v Kelly); 1983 (199 d2 .E .S 299 511, .C.N 307 ,Coltrane .v State); 1981 (617 d2 .E .N 440 40, rd3

.(1982 .App .Crim .Tex (826 d2 .W .S 627 ,State

.(1992 .App .Fla (1353 d2 So 603 ,State .v Russo See 141.

.(1994 .App .Fla (1140 d2 .So 632 ,State .v Malone See 142.

 .Cir th5 (507 .d2 .F 670); 1983 .Cir nd2 (745 .Supp .F 560); 1982 .Cir st1 (1253 .Supp .F 541 See 143.

 ;(1983 .Cir th7 (387 d2 .F 699); 1982 .Cir th7 (1091 d2 .F 681); 1983 .Cir th6 (822 .d2 .F 699); 1982

 .F 534); 1983 .Cir th9 (921 d2 .F 718); 1983 .Cir th7 (1435 d2 .F 706); 1983 .cir th7 (1344 .Supp .F 555

 .(1982 .Cir th11 (1366 d2 .F 682); 1982 .Cir th11 (940 d2 .F 678); 1982 .Cir th9 (1015 .Supp

.(1979) 188 d2 .S.Y.N 413 381, d2 .A 66 ,Dalsheim .v Flores rel ex People See 144.

.(1979) 1291 d2 .P 600 736, d2 .Wash 92 ,Hultman .v State See 145.

.(1979) 691 d2 .A 410 1, .Super .J .N 172 ,Smalls .v Trustees of Board See 146.

 d3 .App .Cal 96 ,Harper of Matter); 1979 (745 .Rptr .Cal 158 506, d3 .App .Cal 97 ,Bray re In See 147.

.(1979) 759 .Rptr .Cal 157 138.

.(1979 .Cir th9 (546 d2 .F 592 ,Thomas .v Robbins See 148.

 Wisconsin the which in ,)2001 .Wis (164 d2 .W .N 630 ,Schwarz .v Kaminski .rel ex State See 149.

 sex his of neighbors immediate his notify to supervision s’department the under probationer an ingrequir Corrections of Department Wisconsin the of rule administrative an approved Court Supreme

 from public the protecting by probation of goals the furthered rule the that reasoning ,status offender

 .society of member useful a become probationer the helping and conduct criminal

 court appellate the ,)1997 .Dept 2 .D.A.Y.N (520 d2 .S .Y.N 662 ,Gould .v People in ,example For 150.

 future notify he that sodomy of convicted probationer a on condition a of imposition the approved

.employment changes he if conviction his of employers

.(a (62.05 Chapter ,Procedure Criminal of Code Texas Annotated s’Vernon See 151.

.Statutes Florida 2008 948.064, § 948, Chapter ,XLVII Title See 152.

 .Cir th5 (665 d3 .F 409 denied rehearing ,)2004 .Cir th5 (216 d3 .F 395 ,Dretke .v Coleman See 153.

.(2005

.(1980) 480 .S .U 445 ,Jones .v Vitek See 154.

.(5) (b (3563 § .C .S .U 18 See 155.

 of fields specified in work seek not to ,release of condition a as ,defendant a orders court a If 156.

 be determinations two these must only not ,valid be to condition that for order in then ,employment

 to and time minimum the “for place in be only can restriction occupational the addition in but made

 608 d3 .F 349 ,Rearden .v States United See” .public the protect to necessary extent minimum the

.(2003 .Cr th9(

.(2001 .Cir nd2 (79 d3 .F 248 ,Peterson .v States United See 157.
8 CHAPTER

REVOCATION

INTRODUCTION

CASE LEADING THE IS BREWER .V MORRISSEY :REVOCATION PAROLE .I

Setting Factual The .A

Court the of Reasoning The .B

Court the of Holding The .C

Hearing Preliminary 1. 

Hearing Revocation 2. 

MORRISSEY AFTER DECISIONS COURT .II

Issues Hearing Preliminary .A

Location 1. 

Promptness 2. 

Notice of Form 3. 

Officer Hearing Impartial 4. 

Issues Hearing Revocation .B

Hearing of Notice 1. 

Evidence of Disclosure 2. 

Proceedings Revocation to Washington .v Crawford of Application 3. 

CASE LEADING THE IS SCARPELLI .V GAGNON :REVOCATION PROBATION .III

PROCEEDINGS REVOCATION PROBATION AND PAROLE IN ISSUES OTHER .IV

Hearing Preliminary of Necessity .A

Proceedings Revocation in Proof of Burden and Standard .B

Proof of Burden 1. 

Proof of Standard 2. 

Violation of Willfulness 3. 

Required Proof of Nature .C

Testimony on Limitation .D

Hearing Speedy to Right .E

Diligence Due .F

 Proceeding Revocation of Disposition .G

Findings Written .H

Counsel to Right 1. 

PROCEEDINGS REVOCATION AFFECTING DECISIONS COURT SUPREME OTHER .V

and Probation of Board Pennsylvania :Admitted be May Evidence Obtained Illegally .A

Scott .v Parole 

Georgia .v Bearden :Revocation and Protection Equal .B

Murphy .v Minnesota to Prior Cases :Miranda and Interrogations .C

Murphy .v Minnesota of Effect The :Miranda and Interrogations .D

Romano .v Black :Revocation Probation and Process Due .E

(RENDITION INTERSTATE (EXTRADITION .VI

SUMMARY

NOTES

155

Revocation

8 CHAPTER

157

INTRODUCTION

 releasing the of judgment best the in ,that implies parole or probation on offender an of release The

 of conditions the observe and law the by abide and respect thereafter will releasee the ,authority

 more 2007, of end the of As .materialize not does expectation this often too all ,Unfortunately .release

 population parole the of ,Moreover .States United the in adults 45 in one about to translates This .rolepa or probation on either ,community the in supervised being were offenders adult million 5.1 than

 about ,parolees these Of .incarcerated-re being of risk-at were offenders 1,180,469 of total a ,alone

2007.1 in incarceration to returned were 16%

 of consideration warrant that arise situations ,Clearly 

.procedures detailed’ agencies their as well as ,revocation erngov that principles legal basic the of aware be must officers field All .parole or probation of revocation

,2Brewer .v Morrissey are revocation on decisions judicial controlling The

 Court Supreme 1972 a 

3Scarpelli .v Gagnon and case

 .v Morrissey the following year the decided Court Supreme the case a 

 the with faced parolees that ,time first the for ,held Court Supreme the ,Morrissey In .decision Brewer

 revocation probation of realm the to Morrissey in holding legal its extended Court Supreme the ,liScarpel .v Gagnon In .considerations process due certain to entitled were parole their of revocation

.hearings

BREWER .V MORRISSEY :REVOCATION PAROLE .I

CASE LEADING THE IS

Setting Factual The .A

 direction the at ,later months Seven 1968. June in paroled was He .prison in years seven to tencedsen was he ,guilty of plea a Upon 1967. in Iowa in check bad a passing of convicted was Morrissey

 A .jail local a in held and violator parole a as hometown his in arrested was he ,officer parole his of

 s’Morrissey revoked Parole of Board Iowa the ,report written s’officer the of review after ,later week

.revocation his to prior hearing no received Morrissey .prison to returned was he and ,parole

 assumed an under car a buying by parole his of conditions the violated had allegedly Morrissey

 false a giving of accused also was He .officer parole his of permission without it operating and name

 Morrissey ,Additionally .accident traffic minor a after company insurance an and police the to address

 to residence his report to failed and name assumed an under credit obtained have to alleged was

 technical these of some admitted Morrissey ,report s’officer parole the to According .officer parole his

.conditions parole his of violations

 without parole his revoke to process due of denial a was it charged He .court district federal in titionpe corpus habeas a filed and remedies state his exhausted Morrissey ,revoked was parole his After

 petition the denied both Appeals of Court Circuit Eighth the and court district federal The .hearing a

 Court Supreme The .certiorari of writ for application his granted Court Supreme States United the but

.courts lower two the of decisions the reversed

Court the of Reasoning The .B

 system correctional the of part integral an become has parole that observing by began Court The

 the that system the in implicit is it said Court The .purposes useful of number a serves it that and

 .parole of conditions the by abides substantially he as long as liberty his retain to entitled is parolee

 factual retrospective wholly a ,first ,as process revocation the of components the identified Court The

 were it if that noted further Court the ,Second .violated were terms parole whether concerning inquiry

 ,matter the of disposition proper the decide to necessary it is then occurred has violation a that found
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

158

 his continue to or prison to back him send and individual the of parole the revoke to whether ,is that

.parole of conditions additional without or with parole

 panoply full the thus “and prosecution criminal a of part not is revocation that observed Court The

4“.revocation parole to apply not does proceeding a such in defendant a due rights of

 Court The 

 of liberty absolute the not ,liberty conditional of deprivation the is revocation that acknowledged

 determine to order in liberty limited this of nature the examined then Court The .citizen ordinary the

 The .amendment fourteenth the in found guarantees process due the of ambit the within is it whether

.is it that held Court

:stated Court The

 the of many includes ,indeterminate although ,parolee the of liberty the that ,therefore ,see We

 the whether of terms in problem this with deal to try to longer any useful hardly is It .others on tenof and parolee the on’ loss grievous ‘a inflicts termination its and liberty unqualified of values core

 be must and valuable is liberty the ,name whatever By’ .privilege ‘a or’ right ‘a is liberty s’parolee

 orderly some for calls termination Its .amendment fourteenth the of protection the within as seen

.5informal however ,process

 an by served be would ,too ,it that found and interest governmental the assessed Court the ,Finally

 the and violation alleged the concerning facts the develop to designed process hearing informal

.revocation of sanction the in involved equities

Court the of Holding The .C

 are procedures what determine to proceeded Court the ,due was process some that concluding After

.conducted be should hearings two that held Court The .required

Hearing Preliminary 1.

 delay substantial a be often will there because ,said Court the ,necessary is hearing preliminary A

.hearing final the and arrest of place the between distance tialsubstan a be also may there; hearing revocation the of date the and parolee a of arrest the between

 parole alleged the of place the near reasonably or at conducted be should inquiry minimal Some

 ‘hearing preliminary ‘a of nature the in as seen be should inquiry an Such . . . available are essourc and fresh is information while arrest after convenient as promptly as and arrest or violation

 arrested the that believe to ground reasonable or cause probable is there whether determine to

.6conditions parole of violation a constitute would that acts committed has parolee

 in involved not is who someone be should inquiry this at officer hearing the that specified Court The

 information adverse given have who persons ,parolee the of request the On .purpose its of and inghear the of notice given be should parolee the that and ,)officer judicial a necessarily not (case the

 that decides officer hearing the if denied be can examination-cross and confrontation ,However .encepres s’parolee the in questioning for available made be to are based is violation parole the which on

/s which (presented information the upon Based .identified if risk at placed be would informant the

 warrant to reason is there if determine should officer hearing the ,)record the for summarize must he

 decision s’officer the for reasons the state must officer hearing The .detention continued s’parolee the

.informal be could process the that stated Court The .on relied evidence the and

Hearing Revocation 2.

.revocation warrant facts the whether of consideration and facts relevant contested any of minationdeter final a to lead to hearing second a be must there ,said Court the ,parolee the of request the At
Revocation

8 CHAPTER

159

:stated Court the ,hearing revocation the to reference In

 violate not did he that ,can he if ,show to and heard be to opportunity an have must parolee The

 warrant not does violation the suggest mitigation in circumstances that ,did he if ,or ,conditions the

 is parolee the after time reasonable a within tendered be must hearing revocation The .revocation

 not would ,cases some in occurs suggests State the as ,months two of lapse A .custody into taken

.7unreasonable be to appear

:include They .hearing revocation the in observed be to procedures specify to on went Court The

.parole of violation claimed the of notice Written) a

.him against evidence of parolee the to Disclosure) b

.evidence documentary and witnesses present to and person in heard be to Opportunity) c

 specifically officer hearing the unless (witnesses adverse examine-cross and confront to right The) d

.(confrontation allowing not for cause good finds

 need which of members ,board parole traditional a as such body hearing” detached and neutral “A) e

.lawyers or officers judicial be not

.8parole revoking for reasons and on relied evidence the to as finders fact the by statement written A) f

 retained of assistance the have could parolee the whether question the decide not did Court The

 .v Gagnon in addressed was issue this When .indigent were he if counsel appointed or ,counsel

,9Scarpelli

 parolee or probationer the of ability apparent the and ,revocation to opposition in considered be to escircumstanc mitigating possibly any ,facts contested of absence or presence the to given siderationcon with ,basis case-by-case a on made be to have would decisions that held Court the 

 parolees to given rights above the that held also Scarpelli .v Gagnon .effectively case his present to

,Scarpeilli .v Gagnon See (.proceedings revocation probation in probationers to given be also must

.(below

MORRISSEY AFTER DECISIONS COURT .II

 of variety infinite the present not did case the of facts the ,detailed unusually was Morrissey Although

 Immediately .systems parole and probation the of administration day-to-day in encountered situations

 considerable been has there ,thereafter years ensuing the in and decision Morrissey the following

 also have agencies administrative and Legislatures .issues significant of number a addressing sionsdeci court presents section This .parameters their define and rules its hone to seeking litigation

 not are refinements legislative these but ,systems individual for rules Morrissey the codify to sought

.decisions court only addresses follows What .here considered

Issues Hearing Preliminary .A

Location 1.

 .rule general the state to appears 10decision Appeals of Court Circuit Eighth An .jurisdictions graphicgeo different in occurred have violations when is here arise to appears problem a time only The

 violation parole or probation the to refers Morrissey in Court Supreme the by to referred” arrest “The

 not was arrest of place the” near “held be hearing preliminary the that requirement the ,Hence .arrest

 probation alleged consider to hearing Nebraska a received probationer Nebraska a when violated

.Oklahoma in occurred that violations
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

160

Promptness 2.

 the that view of point a typifies York New ,end one At .point this on considerably vary jurisdictions The

 charges which after ,months four is promptness of limit outside the suggests law case California .11sisba case-by-case a on made be must” inquiry prompt reasonably “a constitutes what of determination

 when begin not does period the because ,generous perhaps ,reasonable seems This .12struck be will

 are promptness of limits the where ,law Arizona by typified is perspective Another .arrested or monedsum is parolee or probationer the when starts only it; discovered is revocation consider to cause

 probationer the unless ,warrant or summons of service after days 20 than more nor 7 than less not

.13otherwise requests

 the retain and hearing preliminary the with dispense to possible is it that held have courts Some

 the establishes conclusively conviction The .offense new a of convicted been had who parolee a ingconcern 14decision 1976 a in case the be to this held Court Supreme The .process due necessary

 a within held is hearing revocation formal the if ,Also .situations such in cause probable necessary

 view The .sufficient be may hearing revocation single a ,violation alleged the after time reasonable

 constitutionality The .15states among method preferred the be to appears and Michigan by typified is

.16Court Supreme States United the to went which ,case Texas a in challenged was procedure this of

.issue this settling authoritatively without appeal the dismissed ,however ,Court The

Notice of Form 3.

 at notice given be must parole of conditions the of violation alleged an for arrested is who parolee A

 rule general the Nevertheless .17individual the against filed charges the of hearing preliminary the

 hearing final the to respect with notice written requires only ruling Circuit Eighth an by typified as

 acceptably an which in situations those in ,However .18hearing preliminary a to respect with not and

 only for required be would than specificity greater with violation the allege must notice the then ,ingsproceed revocation probation in as such ,utilized is hearing revocation and preliminary combined

.19hearing preliminary a

Officer Hearing Impartial 4.

 is that body hearing detached and neutral a by made be should probation or parole of revocation The

 be must maker decision the Because .attorney an or officer judicial a be not need hearing the ingconduct person the Nevertheless .20case the in involved directly not maker decision independent an

 excluded be must arrest the initiated who officer parole the that appears it ,detached and impartial

.21hearing the conduct may officer parole different a ,However .process this conducting from

Issues Hearing Revocation .B

Hearing of Notice 1.

 have states The .given be” parole of violation claimed the of notice written “that requires Morrissey

 states Most .notice of form acceptable minimally the determining in variation considerable shown

 because ,However .fairness of standards with comply to notice complete reasonably demanded have

 For .devices own their to left been have states ,standards definite any delineate not did Morrissey

.23rights constitutional his violate not does it receive to failure his ,ableunavail himself makes parolee the because given not is notice when that rule majority the is It .22inghear the of place and time the mention not did that notice a adequate found Dakota North ,example

 parole his violated have to found be cannot parolee or probationer a ,rule general a as ,Nevertheless

 for revoked be not may control community or Probation .authority parole or court the by imposed tioncondi a on based be must violation this Moreover .24charged not was that violation a for probation or

 not but officer parole or probation the by imposed unilaterally requirement or condition a of violation a
Revocation

8 CHAPTER

161

 of violations those include only can revocation of order written any ,Thus .25order sentencing the by

 the by upon relied and ,hearing a at proved ,alleged been have that conditions) parole or (probation

.26(board parole or (judge trial

 of conditions the of violation a alleging notice any that held have courts appellate most ,Finally

 the for order in hearing revocation the to prior parolee or probationer the to provided be must release

 had who and children involving offenses sex multiple of history a had who ,respondent the 27horstVanBronk of Commitment re In In .allegations the to defense or response legal a prepare to person

 placed was and person violent sexually a as adjudicated been had ,pedophilia with diagnosed been

 supervised his revoke to petition a filed subsequently Wisconsin of State The .release supervised on

 having by release supervised his of conditions the violated had he that alleged State The .release

 with relationship a initiate to attempted had respondent the that introduced also was evidence inghear the During .residence s’respondent the outside while male old year seven a with contact verbal

 supervised the revoked court trial the hearing the of conclusion the At .child a was who neighbor a

 on based not was release supervised the revoke to decision the ,however; respondent the of release

.incident other the of hearing the at testimony on based was but notice the in violation alleged the

 was he that contending ,release supervised his revoke to decision the appealed respondent The

 .charged not violation rule a on based revoked was release supervised his when process due denied

 court appellate the ,offender sex a of commitment civil a involving appeal an was this though Even

 or probation on person a of interest liberty conditional the between difference no saw it that stated

 due with comply to notice ,proceedings revocation parole or probation in that stated further court lateappel The .person violent sexually a as release supervised on person a of interests the and parole

 that so proceeding court scheduled a of advance in sufficiently given be must requirements process

 particular this in ,Thus .defense a for prepare to opportunity reasonable a have would defendant a

 giving without release supervised revoke to decision a that held court appellate Wisconsin the ,case

.process due s’person the of violation a was notice proper

Evidence of Disclosure 2.

 revocation the at parolee the against evidence the of disclosure of requirement Morrissey The

 notice written of form some require jurisdictions Most .methods of number a by met be may hearing

 jurisdictions most Moreover .hearing revocation the to prior parolee or probationer the to provided be

 parolee the as long as ,However .28materials and records official pertinent to access parolee the allow

 his reveal not need officer parole the ,her or him against evidence the of manner some in advised is

 s’parolee a of denial upheld York New in court district federal A .parolee the to notes or report her or

.29parolee the with conversations of entries chronological s’officer parole his to access

Proceedings Revocation to Washington .v Crawford of Application 3.

 last the in Court Supreme States United the by down handed decisions significant most the of One

 Sixth the by secured as witnesses of confrontation to right s’defendant criminal a concerned decade

 tried was defendant the ,30Washington .v Crawford In .Constitution States United the to Amendment

 tried allegedly had who man a of murder attempted and assault of offense the for court state a in

 the that statement recorded-tape a jury the for played State the trial the During .wife his rape to

 trial the at testify not did wife The .stabbing the describing police the to made had wife s’defendant

 to objected defendant The .her examine-cross to opportunity the get not did defendant the thus and

 be to right constitutional federal his violated this that arguing ,recording taped the of introduction the

 Washington the and guilty defendant the found jury The” .him against witnesses the with confronted“

 .conviction the upheld Court Supreme

 issue the determine to appeal on case this accepted eventually Court Supreme States United The

 evidence testimonial introduce could State the whether :wit-to ,trial his at raised defendant the that
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

162

 noted Court Supreme The .witness the examine-cross and confront to right the him affording without

 reviewed having After” .him against witnesses the with confronted be to . . . right the enjoy shall cusedac the ,prosecutions criminal all n]i “[,that provides Clause Confrontation s’Amendment Sixth the that

 this of framers the of intent original the examined having and confrontation to right this of history the

 the and issue at was evidence testimonial where that concluded Court the ,amendment constitutional

 evidence such that demanded Amendment Sixth the ,examination-cross for unavailable was witness

 .witness the examine-cross to opportunity prior a had had defendant the if only introduced be could

 such As .nature in testimonial-non was that evidence to apply only could hearsay of rules the Thus

.Court Supreme Washington the of judgment the reversed Court Supreme the

 to right Amendment Sixth the invoking of purposes for evidence testimonial constituted what was tonWashing .v Crawford in holding its in reach not did Court Supreme States United the that issue One

 of violation of offense felony the for tried was defendant the ,case state Washington another ,31ingtonWash .v Davis In .decision Court Supreme subsequent a in addressed was matter This .confrontation

 of introduction the allowed judge the trial at testify not did victim the though Even .call 911 the to edrespond had who officers police two were testify to witnesses only The .order contact-no domestic a

 of introduction the to objected defendant The .operator 911 the with exchange her of recording the

.guilty defendant the found jury The .judge trial the by overruled was but recording tape the

 Court The .Court Supreme States United the to way its made eventually matter this again Once

 the and ,testify to unavailable was he unless trial at appear not did who witness a of statements nialtestimo of admission “barred Amendment Sixth the that Crawford in held had it while that observed

 define to needed not had Court the” ,examination-cross for opportunity prior a had had defendant

 acknowledged further Court the Nevertheless .case this resolve to order in” statements testimonial“

 testimonial “by meant it what explain to have would Court the ,Davis in case the deciding in that

 a of course the in made when testimonial-non were statements that held Court The” .statements

 stated Court the Moreover .emergency ongoing an meet to assistance police enable to was rogationinter the of purpose primary the that indicating objectively circumstances under interrogation police

 no was there that indicated objectively circumstances the when testimonial were statements that

 prove or establish to was interrogation the of purpose primary the that and ,emergency ongoing such

 the that concluded Court the Davis In .prosecution criminal later to relevant potentially events past

 .events past describing than rather ,happening actually were they as events concerned recording 911

 to assistance police enable to was call 911 the of purpose the that determined further Court The

 were statements 911 these that concluded Court Supreme the such As .emergency ongoing an meet

.conviction s’defendant the upheld and testimonial-non

Examination-Cross and Confrontation .a

,Washington .v Davis and Washington .v Crawford in Court Supreme the of holdings the Despite

 Amendment Sixth the that concluded have matter this considered have that courts appellate most

 reasoned have courts appellate Most .hearing revocation a in apply not does confrontation to right

 of stage a comprise not does and nature in administrative is proceeding revocation a because that

 .v States United in Thus .inapplicable are Davis and Crawford in holdings the ,prosecution criminal a

 criminal a reviewed which ,Crawford in nothing that stated Appeals of Court Second the ,32Aspinall

 .hearings revocation probation to applicable was Crawford in enunciated principle Clause frontationCon the that suggested otherwise or Scarpelli/Morrissey by set standards the alter to purported ,trial

 unanimously almost have ,level state the at and system federal the both in ,courts appellate Other

.33ruling same the made

 .v Ash In .proceedings criminal in as hearings revocation parole in applicable equally is ingtonWash .v Crawford in holding the that concluded has court district federal one least at Nevertheless

 witnesses five or four by made statements hearsay on solely revoked was parole s’parolee a ,34Reilly

 was Morrissey in decision the that observed Court The .incident the investigating officer police the to
Revocation

8 CHAPTER

163

 officer hearing the unless (witnesses adverse examine-cross and confront to right the “that explicit

 reasoning s’court district The .hearings revocation parole in defendants criminal afforded be to” cesspro due of requirement minimum “a is)” confrontation allowing not for cause good finds specifically

,Morrissey in language the contradict might language its extent the to ,Crawford that concluding for

 criminal of types two the differentiating language use to that was holding Morrissey the superseded

“.incongruous be would’ process due of mentsrequire minimum ‘the of exposition previous s’Morrissey disregard to invitation an as “proceedings

 apply not does or applies Davis .v Crawford in holding the whether questions continuing the Despite

 being to amenable is witness a if that consistent fairly are courts appellate ,hearing revocation a to

 probationer the for testimony relevant offer can and proceeding revocation a at appear to compelled

 authority parole or court the if violated is examination-cross and confrontation to right the ,parolee or

.35defendant the for testimony give and appear to witness the requiring subpoena a issue to fails

 not is parolee or probationer a that is witnesses compel to right this to exception the ,Nevertheless

 court trial the if witnesses adverse of examination-cross and confrontation to right the to entitled

 a violates evidence hearsay of admission the whether determining when that noted court pellateap Idaho an ,36Rose .v State In .witness the producing not for cause good finds board parole or

 court the ,proceedings revocation probation in witnesses confront to right process due s’defendant

 .it denying for cause good s’state the against confrontation in interest s’defendant the weigh must

 the weigh should court the ,interest s’defendant the evaluating in ,that observed Court the ,Moreover

 .case the in presented circumstances specific the under confrontation to right s’defendant

 a in confrontation to right the given be to weight the that stated Rose .v State in Court the Thus

 trial the to evidence hearsay the of importance the on depended case revocation probation particular

 the ,addition In .evidence hearsay by proven be to facts the of nature the and finding ultimate s’court

 it important more the ,finding a to was evidence particular the significant more the that stated court

 not did evidence proffered the that demonstrate to opportunity an given be defendant the that was

 exercising by evidence hearsay testing in interest s’defendant the ,similarly and ,fact verified a reflect

 Finally .reliability s’evidence the of uncertainty the to relation in increased confrontation to right the

 procuring of difficulty the both to look must court the ,proceedings revocation probation in frontationcon to right process due s’defendant the denying for cause good evaluating in ,that stated court the

 cause sufficient was reason particular a whether ,hence; evidence the of reliability the and witnesses

 .right s’defendant the of icancesignif the to relation in reason the of strength the on depended confrontation to right the outweigh to

Admissibility Hearsay .b

 hearsay any that claim process due a still is there ,apply not does Washington .v Crawford if Even

 matter this analyze must one ,Amendment Sixth the under testimony hearsay of validity the alyzingan of instead that means simply Crawford of holding the following Not .reliable be must testimony

 only not is approach this Moreover .Amendment Fourteenth the to clause process due the under

 Court the addition In .well as holding this by mandated but Morrissey of holding the with consistent

 ,and trial criminal a as same the not was hearing revocation the that Morrissey in emphasized also

 ,letters as such ,material of consideration permit to enough flexible be should process the ,result a as

 .trial a in allowable be not would that forth so and ,affidavits

 United The” .reliability of indicia “some bears evidence the provided admissible is proceeding cationrevo a in evidence hearsay that stated have issue this examined have that courts appellate Most

 concluding by principally requirement” reliability of indicia “this applied has Court Supreme States

 any virtually of admission that foundations solid such upon rest exceptions hearsay certain that

 Nevertheless” .protection constitutional the of substance “the with comports them within evidence

 ,exception hearsay rooted firmly a within falls evidence the where inferred be can reliability unless
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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164

.37worthinesstrust of guarantees particularized of showing a absent least at ,excluded be must evidence the then

 a in introduced be may evidence hearsay certain that recognized have which jurisdictions those For

 particular the whether determining for tests two of one used have Courts the ,proceeding revocation

 trial the ,test balancing the under ,Rose .v State in ,above mentioned As .test trustworthiness tialsubstan the is other the and test balancing a is one – admitted properly be can statement hearsay

 in State the of interest the against witness a confronting in interest s’probationer the weighs court

 confrontation process due the ,test trustworthiness substantial the Under .witness the producing not

 determines court trial a where satisfied be generally will matters revocation in applicable requirement

.38reliability of indicia sufficient substantial bears hearsay proffered that

 parole or court the that evidence hearsay the of weight the ,jurisdiction the on depending ,ceedingpro revocation a in considered be can evidence hearsay that recognition widespread the Despite

 ,example For .considerably varies release of condition a of violation a finding in give may authority

 ,proceeding revocation a in evidence hearsay of introduction the affirming jurisdictions other despite

 inadmissible is and value probative no has evidence hearsay that maintain still Georgia in courts the

 ,Court Supreme Kansas the of that of opposite is holding This .39proceeding revocation probation a in

 a although ,that held have and course middle a taken have courts appellate several ,Finally .40cationrevo probation a for basis sole the be can it ,reliable is evidence hearsay where that ruled has which

.41evidence hearsay upon entirely based be cannot probation revoke to decision the ,nesstrustworthi of guarantees substantial bears that statement court-of-out an upon rely can court trial

.V GAGNON :REVOCATION PROBATION .III

CASE LEADING THE IS SCARPELLI

 to apply should Brewer .v Morrissey in holding its whether considered Court Supreme the 1973 In

 Wisconsin a in convicted been had defendant the 42Scarpelli .v Gagnon In .revocations probation

 permitted was defendant The .years seven for probation on placed but robbery armed for court state

 was he Illinois in while ,Nevertheless .Compact Interstate the under Illinois ,County Cook to move to

 a him giving without probation his revoked Wisconsin of State The .house a of burglary for arrested

.hearing

 ,robbery armed for sentence his serve to Wisconsin ,Bay Green in imprisoned been having After

 his in issues two raised defendant The .corpus habeas of writ for application an filed defendant the

 was he that ,two and ,probation of revocation his on hearing a denied was he that ,one; application

 The .rights process due his involved matters these of both that contended He .counsel afforded not

 for case the accepted and certiorari of writ for application his granted Court Supreme States United

.decision

 any if little was there that observed ,Morrissey in holding earlier its noting ,Court Supreme The

 legal the that dictate would logic that and probation and parole of revocation the between difference

 the Thus .revocations probation to applicable held be should Morrissey in enunciated principles

 hearing revocation final a and preliminary a to entitled is ,parolee a like ,probationer a that held Court

.Brewer .v Morrissey in specified conditions the under

 his ,namely ,application his in defendant the by raised matter second the to turned next Court The

 indigent an that held previously had Court Supreme the Although .Morrissey in Court the by dressedad been not had that issue an was This .proceeding revocation the at counsel afforded being not

 that offense an with charge was he whenever counsel appointed-court to right the has defendant
Revocation

8 CHAPTER

165

 of appointment the to right constitutional absolute an had parolee or probationer a that hold to fusedre Scarpelli .v Gagnon in Court the ,43jail in confinement or imprisonment of possibility the carried

 criminal a unlike ,proceeding revocation a that noted Court The .proceeding revocation a in counsel

 the and matters revocation of disposition speedy the as such ,parole and probation in objectives entinher certain that observed further Court the ,Moreover .proceeding adversarial true a not was ,trial

 counsel if thwarted be would ,society into back offender an reintegrating successfully of goal overall

.cases all in parolee or probationer a to appointed were

 require would fairness fundamental ,circumstances certain in that recognized Court the Nevertheless

:stated Court The .proceeding revocation a in offender indigent an for appointed be counsel that

 committed not has he that) 1 (claim colorable and timely a on based ,request a such makes roleepa or probationer ,where cases in provided be should counsel that said be may it ,Presumptively

 violation the if even ,that) 2 (or; liberty at is he which upon conditions the of violation alleged the

 or justified which reasons substantial are there ,uncontested is or record public of matter a is

 or complex are reasons the that and ,inappropriate revocation make and violation the mitigated

.44present or develop to difficult otherwise

 must parolee or probationer indigent an for counsel appoint to decision the that held Court the Thus

.basis case-by-case a on made be

 PROBATION AND PAROLE IN ISSUES OTHER .IV

PROCEEDINGS REVOCATION

 ?statutes parole or probation of spirit the violate act illegal any not Would? conditions explicit of tionviola to limited be revocation must ,instance For .assistance little offers Morrissey issues some For

 to prerequisite a conviction Is? conclusive act illegal an of evidence the ,arrest an of case the in ,Is

 ,proof much How .directly suggested not were areas other in answers ,issues many on guidance videpro to enough detailed and extensive was Morrissey Although? occurred act illegal an that finding a

 of number a to courts the of response The? revoke to decision the support to needed is ,example for

.section this in presented is questions supplemental these

Morrissey in holdings s’Court Supreme the apply to attempted scrupulously have courts Appellate

 United the that reiterated Appeals Criminal of Court Texas the 2006 as recently As .Gagnon and

 in outlined procedures the that Scarpelli .v Gagnon in held had Court Supreme the that and tionsrevoca parole to applies process due that Brewer .v Morrissey in held had Court Supreme States

 United Circuit Fifth the ,decade last the within ,Also .45proceedings probation to apply also Morrissey

 enunciated guarantees process due the that held ,Johnson .v Williams in Appeals of Court States

 preliminary to as hearings revocation to applicable equally are Morrissey in Court Supreme the by

.46hearings

 in Court Supreme the of holding the interpreting in ,however; difficulty had have courts Appellate

:stated Court the when Morrissey

 few The .procedures revocation parole for structure inflexible an create to thought no have We

 not should ,parole of revocations future to applicable are which ,above out set requirements basic

.system parole s’state any on burden great a impose

 deviations some whether or guarantees process due clad-iron are Morrissey in established mentsrequire basic six the whether determine to years the over struggled have courts appellate ,Thus .escircumstanc justifiable under made be to exceptions permits mentioned flexibility the whether or luteabso are Morrissey in guarantees process due the whether question the raised has statement This

.permissible are
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

166

 Hearing Preliminary of Necessity .A

 of purpose second The .47warrant violation a on individual the arrest to cause probable is there erwheth establishes it ,First .fold-two is hearing preliminary a of purpose the Morrissey in explained As

 for period the such As .48individual the of detention unwarranted prevent to is hearing preliminary the

 the on custody into taken actually is person the when begins only hearing preliminary the conducting

 violation a on based person the on detainer a places jurisdiction another and matter criminal aratesep a for jurisdiction one in custody in held being is person a if even true is This .49warrant violation

 completes violator the until triggered not is hearing preliminary the holding for period The .50warrant

.51extradition for available is person the and sentence state-of-out the

 under courts appellate ,hearing preliminary a mandating Morrissey in holding s’Court the Despite

 Court Supreme States United The .hearing preliminary a with dispensed have circumstances certain

 the violated parolee the that alleges warrant violation parole a if that held 52Daggett .v Moody in

 ,offense criminal another) with charged to opposed as (of convicted being by parole his of conditions

 believe to exists cause probable that establish to suffices law of court a in obtained conviction inalcrim a ,occurred violation alleged the that believe to cause probable establish to is hearing liminarypre the of purpose the because ,that reasoned Court The .required not is hearing preliminary a then

 charged is) probationer or (parolee a if ,Nevertheless .offense criminal the committed parolee the that

 .hearing preliminary a to entitled be may person the then ,crime a of) convicted to opposed as (with

 did charges pending new that held Appeals Criminal of Court Texas the ,Cordova parte Ex in Hence

 determine to ,time reasonable a within ,hearing preliminary a to right his of parolee a deprive not

 his of conditions the violated he that show to existed grounds reasonable or cause probable whether

.53parole

 to stipulates parolee a if ,Moreover .54hearing preliminary a waive validly can parolee a ,addition In

 hearing preliminary a hold to failure the then ,hearing revocation a in him against allegations the

 due s’supervisee a violate not does release supervised revoke to proceedings with connection in

 in Court Supreme the of holding the following in ,court appellate state a ,addition In .55rights process

 plea his upon based crime new a of convicted been has parolee a if that held has Daggett .v Moody

 revoking determination a to prior hearing preliminary a to entitled not is individual that then ,guilty of

 the that held have courts some then ,warrant revocation the on apprehension s’probationer or s’roleepa the of time the near or at conducted be will hearing revocation the if ,Finally .56parole s’person the

 States United the 57Columbia of District .v Ellis in Thus .with dispensed be can hearing preliminary

 the satisfied parolee a of arrest the of days thirty within conducted be hearings revocation that ingmandat Columbia of District the in policy the that held Columbia of District the for Appeals of Court

 hearing revocation and preliminary the thus and conducted be hearing preliminary a that requirement

.combined be could

 Proceedings Revocation in Proof of Burden and Standard .B

 to entitled is person that ,release supervised of form a granted is parolee or probationer a Once

 more or one violated substantially has individual that until and unless release conditional on remain

 that right process due a has parolee or probationer the ,Moreover .release of conditions the of

 sufficient a on based is individual that of release conditional the revoke to decision any that ensures

 violation indeed has person the that determination factual s’board or court the that so proof of level

 fair a parolee or probationer the afford to order In .capricious or arbitrary not is release of condition a

 against finding adverse an support to order in followed be must proof of standard what ,facts dentiaryevi certain establishing of burden the has party which with concerned are courts hearing revocation

 or deliberate a in committed was it ,occurred violation a if ,whether and ,parolee or probationer the

.manner willful
Revocation

8 CHAPTER

167

 Proof of Burden 1.

 parolee or probationer a that recognized has matter this addressed has that court appellate Every

Smith in ,example For .58defendant the to notice written a in alleged as released of condition a latedvio person the that prove to burden the carrying attorney prosecuting the in right process due a has

 of probation the revoke to court trial the of decision the reversed court appellate Indiana an 59State .v

 the ,State the by presented evidence probative any consider to failing by that holding ,defendant the

 alleged been had he crime the that prove to defendant the to burden the shifted had fact in court trial

 ,Nevertheless .committed not was probation his of conditions the of violations in committed have to

 a establishing of burden the carries State the that affirmed consistently have courts the although

facie prima a presents State the if stated also have courts some ,release of condition a of violation

 to shift then may burden the ,probation of condition a violated probationer the that indicating case

 North a ,60Terry .v State in ,Thus .willfully committed not was violation the that show to probationer the

 presented has State the once ,hearing revocation probation a at that stated court appellate Carolina

 the ,probation of terms the with comply to failure s’defendant the establishing evidence competent

 comply to inability an ,evidence competent through ,demonstrate to defendant the on then is burden

.terms the with

 Proof of Standard 2.

 to decision s’officer an upon effect an have will revocation support to required proof of standard The

 is officer an Where .decision revocation the making with entrusted authority the to case the submit

 the in revocation for required proof of standard the of knowledge a ,hearing revocation the conducting

 finding a which in proceeding revocation no up turned has research Although .essential is jurisdiction

 .standard proper the determining in states the among latitude wide a lessneverthe is there ,61standard doubt reasonable the beyond proven be to had violation alleged an of

 probationer a that prove to order in require system federal the and states many that standard The

 is standard This .62evidence the of preponderance a by is release of condition a violated parolee or

 reasonable a creates evidence credible of weight greater the if proceeding revocation a in satisfied

 ,Nevertheless .63State the by alleged as probation of condition a violated defendant the that belief

 the that stated has Alabama in court appellate an Thus .standard this of variant a follow states many

 than rather ,satisfaction reasonable the be to is hearings revocation probation in proof of standard

 to proof the Mexico New In .64evidence the of preponderance a by or doubt reasonable a beyond

 believe to mind impartial and reasonable a inclines which that be must revocation probation support

.65probation of terms the violated had defendant the that

 Violation of Willfulness 3.

 the that finding a substantiate to hearing revocation a at presented evidence sufficient is there if Even

 revoke cannot still authority parole or court the ,release of condition a violated parolee or probationer

 general a As .unavoidable or unintentional was violation the if person the of release supervised the

.66inexcusable or intentional was violation any that find must court district a ,probation revoking in rule

,67Ferguson .v Commission Parole Florida In .proceedings revocation parole in true also is This

 hearing the neither where warranted not was parole of revocation the that held court appellate the

 actions s’parolee the that indicated revocation of order s’commission parole the nor record s’officer

 whereas ,Finally .supervision release conditional his of violation substantial and willful a constituted

 this place others ,State the on violation willful a indicating of burden the place jurisdictions some

 there where that held Court Supreme Kansas the ,68Skolaut .v State in Thus .defendant the on burden

 not show to opportunity an to entitled is probationer the ,probation revoke or continue to discretion is

 for excuse justifiable a was there that also but ,probation of conditions the violate not did he that only

.disposition appropriate the not is revocation that or violation any
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

168

 Required Proof of Nature .C

.70plea guilty uncounseled s’probationer the was upon relied evidence only the where improper tionrevoca held has ,hand other the on ,Louisiana .69state the by proof of necessity the eliminates sionadmis the ,probation of violation for grounds the admitted has defendant a once that held has Illinois

 parolee the of statement mere The .parole revoke to required is act overt some that held has Florida

 testimony the Often .71revocation for insufficient was conditions parole his violate to intended he that

 the Whether .proceeding revocation a at crucial is parolee or probationer a of charge in officer the of

 of statement conclusory the on merely based be cannot revocation that held court Texas A .states entdiffer in varies parole revoke to sufficient is—evidence other by unsupported—officer an of testimony

 Oklahoma .72directed as month a once least at report to failed probationer the that officer probation a

 the that ,evidence supporting without ,testimony s’officer an on solely based revocation permit not did

 had and job his from fired been had defendant the that -- officer probation a of testimony contradictedun the that holding ,result opposite the reached Carolina North .73Missouri to moved had defendant

 in ,Similarly .74revocation a support to sufficient was -- costs probation his toward payment made not

 on solely based upheld was revocation probation) needed is” evidence slight “only where (Georgia

.75intoxicated while driving was probationer the opinion his in that officer arresting an of testimony the

 similar that probable seems It) .drunkenness on opinion an give to allowed are usually laymen Even(

.Georgia in officer parole a to applied be would reasoning

 conclusions s’officer an accept than rather ,cases appropriate in detail on insist will probably Courts

 to hearing revocation a at required was officer probation a ,76case Oregon an In .event an about

 with woman the of daughter old-year-four the with probationer the of relationship precise the to testify

 associating from probationer the prohibited condition probation A .living was probationer the whom

 proscribed the with household same the in living equate to unwilling was court The .girls young with

 to known or by observed facts the from conclusion own its draw to wanted court the;” association“

 .officer the

 s’officer) probation or (parole a whether on rule clear no is there ,demonstrate cases above the As

 must it But .)probation or (parole revoke to sufficient be will evidence other by unsupported testimony

 the if ,Thus .admissible is event observed an concerning testimony uncorroborated that noted be

 location or place a at present or alcohol consuming offender the saw officer the ,example for ,olationvi alleged the of basis the forms that event the of knowledge personal has officer probation or parole

 interest penal his against admission an made offender the or board parole or court the by prohibited

 or court the by to not ordered when drugs taking been had he that admitting as such ,officer the to

 the revoking board parole or court a justify to sufficient generally is evidence this then ,board parole

.release conditional s’offender

 for objectionable be might testimony although ,that recognize also should officers parole/Probation

 Supreme the ,example For .purpose legal another for received be ,nevertheless ,may it ,purpose one

 in introduced be not may Miranda of violation in obtained evidence though even ,that held has Court

 denies and stand the takes defendant the if purposes impeachment for introduced be still may denceevi such ,alleged offense criminal the committed actually defendant a that prove to chief in case the

 aware be to need officers parole and probation Thus .77State the by alleged act the committed he that

 admissible be still may it ,hearing revocation a in excludible ordinarily is evidence certain if even that

.offender the of mind of state the show to or ,purposes impeachment for ,evidence rebuttal as

 that incident the of knowledge personal have not does officer parole or probation a if ,addition In

 officer the of part the on testimony any ordinarily then ,proceeding revocation the of basis the forms

 had parolee or probationer a whether of issue the on ,Thus .alleged violation the committed tuallyac parolee or probationer the that finding a support not could it meaning ,probative be not would

 qualified a be not might officer the ,checks bad certain written had or ,arrests of history particular a
Revocation

8 CHAPTER

169

 .matters such prove to saryneces deemed be might officer bank a of testimony the or record police a of copy certified A .witness

 of conditions the of violation what on dependent also is probative is evidence of type what ,Moreover

 offense new a for arrested was probationer or parolee a that proof ,example For .alleged is release

 ,However .offense new a committed offender the that allegation an prove to sufficient be not would

 release s’offender the of condition a that were allegation the if sufficient be might arrest an of proof

 in Thus .so do to failed had he and officer parolee or probation his to arrests new all report to was

 particular a concerning have may he evidence any of value probative the consider only not must ficerof parole or probation a ,release conditional s’offender an of revocation seek to whether determining

 of light in evidence this of value probative the evaluate also but ,release of conditions the of violation

.board parole or court the by imposed conditions other

 limited for evidence of admissibility the regarding made points the illustrates case Virginia West A

 the took He .murder to accessory an as charged been had defendant the case that In .78purposes

 Ordinarily .condition parole association-non a violated fact in had defendant The .parole his of tionscondi the observed had he that claimed but ,Ohio in convicted previously been had he that edgedacknowl ,character good his establish to seeking of course the in ,and defense own his in stand

 rules the ,such as; prosecution murder the to collateral clearly was conditions parole of observance

 collateral a on permitted not is impeachment because testimony the bar would normally evidence of

 for received be could testimony the that ,case particular this in ,held court the Nevertheless .matter

 version his ,hence; truth the tell always not did defendant the that suggesting of purpose limited the

.credible be not might case murder the in facts the of

 Testimony on Limitation .D

 may that evidence other or testimony the of relevance the on limits precise the tell not do cases The

 that In .limits are there that shows ,however ,79case York New One .revocation support to offered be

 that discovered officer an ,announced was decision any before but hearing revocation the after ,case

 s’court the explain not did which ,opinion summary a In .officer hearing the of attention the to mationinfor this brought he; hearing the at considered were than checks bad more written had parolee the

 .ordered was examiner different a before hearing new a and improper be to held was this ,reasoning

 these about notice written no was There .with interfered were arguably rights Morrissey of number A

 the ,Moreover .them explain or refute to opportunity no had parolee the and” ,charges “additional

.examiner hearing the bias to tending as viewed been have might information additional

 Hearing Speedy to Right .E

 amendment sixth a have not does parolee or probationer a that held have courts most ,Generally

 at true is This .80release of conditions the of violations of allegations the on hearing speedy a to right

 right amendment sixth the that held have courts appellate Instead .81level federal and state the both

 trials criminal to application only has Constitution States United the in guaranteed as trial speedy a to

.82proceedings revocation to not and

 Diligence Due .F

 a have not does hearing revocation a facing parolee or probationer a that holdings court Despite

 unacceptable an that notion the entertained have court ,hearing speedy a to right amendment sixth

 .rights process due certain implicate may hearing the conducting even and arrest the procuring delay

 a as characterized sometimes is which ,diligence due of right this that found have courts Moreover

 States United the to amendment sixth the of out not arises ,revoke to motion s’State the to defense

 diligence Due .83amendment fourteenth the to clause process due the under instead but Constitution
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

170

 for moves state the if issue an becomes diligence due that in trial speedy a to right the from differs

 a to applies only trial speedy a to right the while expired has probation of term the after revocation a

 was allegations criminal new to defense s’person the that claims defendant a if proceeding criminal

 .individual the trying State the in delay the by prejudiced unjustly

 petition revocation a if period probationary the beyond revoked lawfully be may probation ,Generally

 for execution and of issuance the in State the by delay unreasonable an ,However .84time sonablerea a within petition the on acts state the and period probationary the of end the to prior filed is

 reasonable with ascertainable or known either are whereabouts whose probationer a of arrest the

 .discharge to defendant the entitle and violation the of waiver s’State the in result may diligence

 show to State the on is burden the ,diligence due of matter the raises probationer the once ,Moreover

 shows appeal on record the where ,Thus .person the apprehending in diligence due of exercise the

 probationer a on service attempt to State the by made actually efforts to as evidence of absence an“

 timely a make to failed State the that hold will courts appellate then” ,whereabouts his investigate or

.85defendant the on warrant the serve to effort reasonable and

 a conduct to need the for frame time the ,hearing preliminary a to right the with as ,Nevertheless

.86issued been has individual the of arrest the for warrant a until begin not does hearing revocation

 Although .Virginia in prison in term a serve to sentenced and offense different a for arrested quentlysubse was Virginia West in probation on placed was who defendant a ,87Inscore .v State in ,Thus

 a filed prosecutor state the ,revoke to petition a prepared had Virginia West in officer probation the

 completed had he after until individual the on action further no took and defendant the on detainer

 asserted Virginia West in hearing revocation his at ,defendant The .Virginia in confinement of term his

 to right “constitutional state his violated hearing revocation probation the conducting in delay the that

 “.trial speedy a

 that held court appellate the Instead .appeal on contention his with disagreed court appellate The

 Virginia West in authorities prosecuting the and state another in incarcerated is defendant a where

 diligence due of exercise sufficient a was it ,proceedings revocation probation with proceed to wished

 warrants bench more or one cause to and process detainer the invoke to attorney prosecuting the for

 in incarcerated was defendant a where that held further court appellate The .probation revoke to tionpeti the of pendency the of defendant the notifying of means a as arrest s’defendant the for issue to

 bring to attorney prosecuting the for diligence due of exercise sufficient a was it ,proceedings cationrevo probation with proceed to wished Virginia West in authorities prosecuting the and state another

 reasonable a within hearing revocation probation a for court Virginia West the before defendant the

.state asylum the in sentence his of conclusion the following time

 Proceeding Revocation of Disposition .G

 hearing The .proceeding revocation a resolve not does release of terms the of violation a of finding A

 on remain to individual the allow or releasee the incarcerate to whether decide then must body

 whether determine to are hearing revocation a at tasks s’board parole or court a ,Thus .supervision

 viable a remains parole or probation the whether ,so if and condition release a violated individual the

 revocation whether or ,conduct social-anti future deterring and person the rehabilitating of means

 an of consists hearing revocation the to component first The .88order in are confinement thus and

 condition a violated indeed has defendant the whether determine to hearing evidentiary adversarial

 evidence the if Only .considerations policy on based is hearing the of part second the; probation of

 ,beneficial the whether determines and discretion its exercises court the proceeding the of stage ondsec the In .play into come hearing revocation the of component second the does violation a supports

 public the protect to need the whether or serviced being still are probation of purposes rehabilitative

.89liberty in interest) s’parolee or (s’probationer the outweighs
Revocation

8 CHAPTER

171

 complex more much a entail actually hearing revocation the to stages or components two These

 there hearing revocation a At .proceeding revocation a of outcome the determining finally for process

:resolved be to issues potential several are

 of burden the carries State the which ,true are motion revocation the of allegations the Whether 1.

.90proving

.91justification legal without or willfully violation the committed defendant the Whether 2.

 ,extended ,continued be should supervision community the whether ,found is violation a If 3.

.92revoked or ,modified

.93reduced be should sentence the whether ,revoked is supervision community If 4.

 must individual that ,release of conditions the of violation a admits probationer a if even ,Thus

 warrant not does violation the suggesting evidence mitigating offer to opportunity an given be still

.94revocation

 is probation of condition single a of violation a that affirmed have decisions appellate some Although

 hearing revocation a of goal the that reiterated also have courts the ,95probation revoke to sufficient

 risk good a remains defendant the whether determine to but ,innocence or guilt decide to not to is

 be must conditions probation of violation the “:stated court appellate federal one As .96probation for

 that demonstrates behavior s’probationer the if only appropriate is revocation probation; substantial

 of accumulation mere by warranted not is and ,activity social-anti avoid to on counted be cannot he

97“.violations technical

 Findings Written .H

 appellate ,Scarpelli .v Gagnon and Brewer .v Morrissey in holdings s’Court Supreme the since Ever

 to failure the Thus .writing in be must orders disposition revocation that held consistently have courts

 probationer the provide to and relied judge trial the which upon evidence the regarding findings make

 writing in be order disposition the that requirement this ,Nevertheless .98process due to right s’tionerproba the of denial a is probation s’person the revoking for reason s’judge the of statement a with

 it provided record the in hearing evidentiary the of transcript the of placement the by satisfied be may

.99probation revoking for reasons s’court trial the of statement clear a contains

 Counsel to Right 1.

 not was probationer a held Scarpelli .v Gagnon in Court Supreme the rights the of one ,Surprisingly

 right the was proceeding revocation a in Constitution States United the under to entitled automatically

 entitled was) parolee and (probationer a whether that held Scarpelli in Court the ,Instead .counsel to

 courts appellate Certain .hearing revocation the at decided being issues the of complexity the on eddepend largely and basis case-by-case a on decided be must proceeding revocation a in counsel to

 either that held have courts appellate other Nevertheless .100hearing adjudication probation a lowingfol appeal on or hearing probation of violation a at counsel to right absolute an have not does tionerproba a that held has court appellate one Thus .Court Supreme the of holding this followed have

 revocation probation a at individual the ,102statute state a through or 101constitution state its under

 entitled be shall ,indigent if ,and counsel retain to right the has he/s that informed be must hearing

 a although that held have courts appellate other ,However .103defender public the of services the to

 held has court appellate one ,Hence .hearing revocation a of short falls that proceeding any in selcoun to entitled not is probationer a ,hearing revocation a at counsel to entitled be may probationer

 because probation his of conditions the modify to hearing a at counsel to entitled not is person a that

.104revocation probation a as liberty of loss same the in result not does probation of modification a

.105adversarial-non is proceeding the of nature the if counsel to entitled not is probationer a ,Finally
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 Chapter

172

 DECISIONS COURT SUPREME OTHER .V

PROCEEDINGS REVOCATION AFFECTING

 is first The .revocation probation to related issues addressed have rulings Court Supreme other Four

 evidence obtained illegally (1998 in decided ,106Scott .v Parole and Probation of Board Pennsylvania

107Georgia .v Bearden decided Court the 1983, in); proceedings revocation in admitted be may

 in); restitution make and fine a pay to failure for revoked be can probation s’indigent an whether(

 decided Court the 1985, in and); warnings Miranda the without probationer the from obtained denceevi of admissibility the involving (108Murphy .v Minnesota in ruling a down handed Court the 1984,

 prior probation to alternatives consider to courts requires process due whether (109Romano .v Black

.elaboration further invite cases significant These .)revocation to

 of Board Pennsylvania :Admitted Be May Evidence Obtained Illegally .A

Scott .v Parole and Probation

 proceedings revocation with dealing decision Court Supreme States United recent most The

 could provision constitutional a of violation in obtained evidence whether of issue the addressed

 and murder degree third of charge the to contendere nolo pleaded had defendant the ,110Scott .v rolePa and Probation of Board Pennsylvania In .proceeding revocation a in introduced be nevertheless

 on released was defendant the later years Ten .years twenty to ten for prison to sentenced been had

 of agents allow to consent a signed defendant the addition In” .weapon other or firearms any ingpossess or owning “from refrain he that was parole s’defendant the of conditions the of One .parole

 and ,property ,person his of searches conduct to Parole and Probation of Board Pennsylvania the

.residence

 of violations alleged several for arrested was he ,parole of period s’defendant the into months Five

 ,bow compound a ,firearms five found agents The .mother his of home the also was which ,denceresi s’parolee the of search a conducted agents parole ,addition In .release his of conditions the

 admitted nevertheless was evidence the ,hearing revocation his at weapons seized the of troductionin the to objected parolee the Although .residence his of search the of result a as arrows three and

.revoked was parole his and hearing the at

 The .Court Supreme Pennsylvania the to evidence this of admission the appealed defendant The

 rights constitutional States United his of violation in seized was evidence the that argued defendant

 the that held and agreed Court Pennsylvania The .amendments fourteenth and fourth the under

 Supreme States United the to ruling this appealed State The .case this to applied rule exclusionary

.Court

 its where rule exclusionary the applied only had it that noted Court Supreme States United The

 the ,premise analytical this using Thus” .costs social substantial “its outweighed benefits deterrence

 a to rule exclusionary the applying in costs social the versus benefits deterrence the examined Court

:stated Court the of majority A .proceeding revocation

 systems parole state of functioning the hinder both would rule exclusionary the of application the

 rule The .proceedings revocation parole of nature administrative ,flexible traditionally the alter and

 in rule the of application because ,context this in benefits deterrence minimal only provide would

.searches unconstitutional of deterrence significant provides already context trial criminal the

 the ,short In .rights amendment fourth s’parolee a of violation in seized evidence of hearing cationrevo parole a at introduction the ban not did rule exclusionary the that held Court the ,Therefore

 in evidence obtained illegally exclude to states the require not does Constitution the that held Court

 obtained illegally exclude or admit ,discretion its at ,can state a that means This .hearings revocation

.proceedings revocation in evidence
Revocation

8 CHAPTER

173

 assumption this which under situations certain are there ,proceeding revocation a in minimal idenceev obtained illegally of admissibility the of effect deterrent the deemed Court Supreme the Although

 action criminal a in parolee a try to decline may prosecutors state ,example For .questioned be could

 the have to seek instead and admissible be not may evidence critical certain that believe they if

 question the address not did Scott in Court the ,Moreover .proceeding revocation a in used evidence

 obtained confession a whether ,is that ,rights Amendment Fifth s’parolee a of violation a concerning

 ,holding this despite ,Finally .proceeding revocation a in admissible be still could coercion or force by

 illegally of admissibility the restrict and rules exclusionary state own their create may states certain

.proceeding revocation probation or parole a in evidence obtained

Georgia .v Bearden :Revocation and Protection Equal .B

 receiving by theft and burglary to court trial Georgia a in guilty pleaded petitioner the ,111Bearden In

 ,law Georgia with accordance in ,instead; guilt of judgment a enter not did court The .property stolen

 in $250 and fine $500 a pay he that condition on probation to petitioner the sentenced court the

 .months four within balance $550 the and ,day next the $100 ,day that payable $100 with ,restitution

 ,work from off laid was he later month a but $200, first the paid and money borrowed probationer The

 became balance $550 the before Shortly .work other find to unable was ,effort repeated despite and

 filed State the ,Thereafter .late be to going was payment his that office probation the notified he ,due

 after ,court trial The .balance the paid not had probationer the because probation revoke to petition a

 The .prison to probationer the sentenced and ,conviction a entered ,probation revoked ,hearing a

 no had and employment find to unable been had probationer the that disclosed hearing the of record

.income or assets

 a revoke properly cannot court sentencing a that held Court Supreme States United the ,appeal On

 that findings and evidence absent ,restitution make and fine a pay to failure for probation s’defendant

 inadequate were punishment of forms alternative that or failure the for responsible somehow was he

:Court the Said .deterrence and punishment in interest s’State the meet to

 the where justice equal no be can there “that declared Black Justice ,ago century-quarter a Over

 the that doubt no is There ....has he money of amount the on depends gets man a trial of kind

 fine imposed the pay to fail not did who person a from differently petitioner the treated has State

 .probation violate not did therefore and

 ,clause Protection Equal the violates treatment differential this whether determine to ,Nevertheless

 be may status indigent s’defendant a ,circumstances what under and whether determine must one

.112probation revoke to whether decision the in considered

 revocation a to defense affirmative an is) pay to inability or (indigence ,however ,jurisdictions many In

 to similar challenge constitutional a avoiding hence — obligations monetary pay to failure for petition

 Nevertheless .)parolee or (probationer the with usually is indigence proving of burden The .Bearden

 be must it ,payments make to failure for individual an of release supervised the revoke to order in

.113probationer or parolee the of part the on willful was failure the that shown

 becomes case Bearden the ,revocation to bar a as indigence for provide not do that jurisdictions In

 must distinction a that ,however ,Bearden from evident is It .incarceration to defense a as important

 to refusal and ,revocation foreclosing thus ,indigence of because pay to failure between made be

 Thus .take to court the for option valid a is proceeding contempt possible a or revocation where ,pay

 to adequate not are punishments alternative finds it if only imprisonment order can court the ,mentspay requiring conditions probation satisfy to efforts sufficient made probationer a that finds court a if

 that imprisonment to alternatives These .114deterrence and punishment in interests s’state the satisfy

 performance and ,pay to time of extension ,imposed fine of reduction include consider should court a

.115thereof lieu in tasks service public of
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

174

 good a show must) parolee or (probationer the incarceration to alternatives considers court a Before

 Supreme Wyoming the ,State .v Ransdale in Thus .condition payment a with comply to effort faith

 the revoked court trial a where violated not were rights process due s’probationer a that held Court

 imprisonment to alternatives considering first without restitution pay to failure for probation s’person

 look to effort no made had he that admitted probationer the that hearing the at shown was it where

 the that evidence no was there and ,fold to started business s’family his when employment other for

 ,order probation the of terms the of modification a seek ,money borrow to effort any made probationer

.116circumstances in change a of court the notify or

Murphy .v Minnesota to Prior Cases :Miranda and Interrogations .C

 the that requires Miranda .inadmissible is rules Miranda of violation in conducted interrogation dialcusto during made statement any that holds case That .117Arizona .v Miranda by governed is comeout the ,statement own his is trial criminal a from exclude to seeks defendant a evidence the When

:given be warnings following

.silent remain to right a has suspect The■ 

 .court in suspect the against used be may made statement Any■ 

.questioning any during and before attorney an of presence the to right a has suspect The■ 

.state the by provided be will one ,attorney an hire to afford cannot suspect the If■ 

.desires suspect the time any terminated be will Interrogation■ 

 to apply directly not does It .trial at evidence of admissibility the only affects decision Miranda The

 indicates investigation the where arise frequently circumstances but ,revocation parole or probation

 line the cross to not careful be must officer the ,occurs this Where .offense new a of occurrence the

 approached is it if even perhaps and ,crossed is line the If .crime a of information out ferret to itiesauthor enforcement law for agent as serving and — role proper her or his — supervision between

.given be should warnings Miranda ,closely

 in involved is officer the that indicate will answer affirmative An .interrogation custodial to amount escircumstanc the whether herself or him ask well might officer parole/probation the ,doubt of cases In

 to intent the formulates officer the if ,Moreover .function supervision the from separate ,is that — turena independent an of being as construed be might that circumstance or act some of investigation an

 ,inquiries investigative any completes she or he until leave to parolee or probationer a allow to refuse

 .interrogation custodial constitute may this then

 “way significant any in action of freedom of deprived “was suspect the whether consider courts The

 in freedom of deprived was she or he that belief reasonable a held have only need suspect The .todycus actual in been have not need defendant The .nature in custodial is questioning if determining in

 .way significant any

 against ruled Court Supreme the ,however; custody in always is parolee a that argued be could It

 .burglary a discuss to meet to officer parole his by asked was parolee a ,case Oregon an In .view this

 this held Court The .confessed suspect the and place convenient a as station police a at met They

.118leave to free fact in was he as ,interrogation custodial a not was

.119warnings Miranda the give to required is officer the ,charge new a on custody in is parolee the If

 a when that held case Kansas A .custodial as construed is what to as considerably vary dictionsjuris and ,basis case-by-case a on determined is interrogation custodial constitutes actually What

 and ,office parole the to parolee the took ,home s’parolee the to police the with went officer parole

 questioning any that suggested court The .120custodial was interrogation the ,there him questioned
Revocation

8 Chapter

175

 case Oregon the ,However .warnings Miranda requires offense new a to related officer parole the by

.otherwise holds above to referred

Miranda for need the obviating ,interrogations custodial be to not following the held have Courts

 .warnings

 ,office the at and office parole the to ride a during occurred officer parole a by questioning Where 1.

 cause probable has officer parole the Once .accusatorial become yet not had investigation the but

.121effect given be must Miranda ,arrest an make to

 .initiative own his on crime a to confessed and hospital state a at confined was parolee a Where 2.

 to free was ,handcuffed not was parolee the that facts the significant as mentioned court The

.122area interviewing the in present were parties third and ,area interviewing the leave

 probation the in inherent that exceed not did involved coerciveness the as ,applied not was daMiran ,room interviewing the leave to free not was probationer the although ,case York New a In 3.

 release the of part as questions answer to agreed has client the Often (.relationship parole or

123(.agreement

Murphy .v Minnesota of Effect The :Miranda and Interrogations .D

 some gives which ,124Murphy .v Minnesota decided Court Supreme States United the 1984, In

 evidence in admissible be may officer probation a by obtained evidence not or whether to answers

 charge related-sex a to guilty pleaded Murphy ,case that In .warnings Miranda the of absence the in

 him required probation of terms The .probation on placed and sentence suspended a given was and

 probation his with meeting a of course the During” .matters all in “officer the with truthful be to and ,lyperiodical officer probation his to report to ,offenders sexual for program treatment a in participate to

 had probationer the that counselor treatment a from information received previously had who ,officer

 the committed had he that admitted ,questioning upon ,Murphy ,murder and rape 1974 a to admitted

 .murder and rape

 the to made confession the suppress to sought Murphy ,murder degree-first for indicted being After

 admissions s’probationer the of evidence into introduction the prohibit not did amendments teenthfour and fifth the that held Court The .Court Supreme States United the to went case The .mentsamend fourteenth and fifth the of violation in obtained was it that ground the on officer probation

 should government the that questions with confronted witness A .one compelled a into statement taryvolun otherwise an convert itself in not did truthfully questions answer and officer probation his forebe appear to obligation the ,general In .prosecution murder subsequent the in officer probation the to

 privilege amendment fifth the assert must ordinarily evidence incriminating elicit to expect reasonably

 assert than rather answer to chooses he If .himself incriminate to not desires he if answer than rather

.privilege the claim to free was he since voluntary be to considered is choice his ,privilege the

 to objected probationer the had ,example For .Murphy of result a as arise questions of number A 

 evidence the would ,so do to forced was but ,officer probation the by asked questions the answering

 considered probationer a is When .negative the in be to appears answer The? admissible been have

 a in used be to is evidence the if given be must warnings Miranda the that such custody in be to

 formal no was there since protection Miranda receiving of purposes for’ custody in ‘not was spondentre that clear is it “that saying than other ,Murphy in that answer not does Court The? trial criminal

 the Does” .arrest formal with associated degree the of movement of freedom on restraint or arrest

 reasons are there but ,Court the by decided not was This? cases parole to extend Murphy in holding

*.should it that believe to

 ,Conditions 7, Chapter in incrimination-self on section the see ,Murphy .v Minnesota of discussion further a For*

.Status in Changes and ,Modifications
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

176

:follows as summarized be may decision Murphy the of effect The

PROBATION THE BY GIVEN BE WARNINGS MIRANDA THE SHOULD

?ADMISSIBLE BE TO IS OBTAINED EVIDENCE THE IF OFFICER

Trial Criminal in Used If Proceeding Revocation in Used If

rights asserts probationer unless ,No No custody in not Offender

Yes decision court of law state upon Depends custody in Offender

Romano .v Black :Revocation Probation and Process Due .E

 ,case that In .probation revoking before incarceration to alternatives consider to judge a requires tionConstitu States United the whether issue the addressed Court Supreme the ,125Romano .v Black In

 ,offenses substance controlled several to court state Missouri a in guilty pleaded Romano Nicholas

 under felony a ,accident automobile an of scene the leaving with charged subsequently and for edarrest was he ,later months Two .sentences prison suspended given and probation on placed was

 and probation his revoked defendant the sentenced had who judge the ,hearing a After .law Missouri

 petition corpus habeas a filed Romano .sentences imposed previously the of execution the ordered

 by requirements process due violated had judge state the that alleging Court District Federal in

 and agreed Court District The .incarceration to alternatives considering without probation revoking

 ,appeal On .decision that affirmed Appeals of Court The .custody from released Romano ordered

 before incarceration to alternatives considered has it that indicate to court sentencing a require allygener not does amendment fourteenth the of clause process due the that held Court Supreme the

Brewer .v Morrissey in out laid first ,probation of revocation for procedures The .probation revoking

 by statement express an include not do ,Scarpelli .v Gagnon in cases probation to applied then and

 reiterated Court The .rejected and considered were incarceration to alternatives that finder fact the

 of revocation against probationer the protect adequately Morrissey in specified procedures the that

.manner unfair constitutionally a in probation

 the by required procedures the that say to on went Court the ,case the in facts specific Addressing

 the on explain not did judge state the though even ,case this in afforded were clause process due

 did probation of revocation The .incarceration to alternatives of rejection and consideration his record

 revocation the after ,because or convicted previously was defendant the which for offense the to edunrelat was accident an of scene the leaving of offense the because simply process due violate not

 of misdemeanor the to reduced were accident automobile the from arising charges the ,proceeding

 an shown has Court the However .measured are challenges process due revocation which by stickyard the still is Morrissey that reiterates ,therefore ,case Romano The .driving careless and reckless

.Morrissey in out laid that beyond process due of meaning the expand to unwillingness

(RENDITION INTERSTATE (EXTRADITION .VI

 while state one of authorities the by wanted often is probationer or parolee a ,society mobile this In

 another from person a retrieving for process The .state another in present physically is she or he

:states which Constitution the in found is process the of outline The .extradition as known is state

 and ,justice from flee shall who ,crime other or ,felony ,treason with state any in charged person A

 he which from state the of authority executive the of demand on shall ,state another in found be

.crime the of jurisdiction having state the to removed be to ,up delivered be ,fled
Revocation

8 CHAPTER

177

 circumstances the include These .process this concerning years the over arisen have Questions

 the and ,justice from fugitive a one makes that behavior the ,refused be may extradition which under

 only the probably ,here addressed issue only The .extradition require to courts federal of authority

 documentation and papers the of adequacy the is ,involved are officers parole/probation which in one

.based is demand extradition the which on

 extradite to request s’governor a support to assembled be must evidence documentary what Exactly

 of certificate a require not does Colorado .state to state from considerably varies violator suspected a

 seems it but ,parole to applied be might logic same The .126sufficient is probation and ,sentence edsuspend ,plea s’defendant the of record certified a; imposed sentence the and ,conviction ,judgment

 held was it ,case Colorado another In .required be would conviction of judgment a least at that likely

 terms the violated person the that governor the from statement a and conviction of judgment a that

 probation probable a infer to court the allowed Hampshire New .127sufficient were probation his of

 probation of conditions the because ,papers extradition the from omitted was it though even violation

 necessary the involving question a whenever counsel legal departmental with consult should cersoffi parole/probation ,Thus .128permission without state the leave not defendant the that included

 being parolee or probationer a if Finally .arises extradition successful for required documentation

 will supervision s’individual that then ,state another to move to permission gets state a in supervised

.Supervision Offender Adult for Compact Interstate the of rules the by governed be

SUMMARY

 process due the on primarily focusing ,revocation to related issues legal examines chapter This

 due procedural The .proceedings revocation for established has Court Supreme the that guarantees

 law the remain ,Scarpelli .v Gagnon in ,later year a clarified and Morrissey in forth set rights process

 final a and hearing preliminary a of comprised process stage-two a mandates Morrissey .land the of

 states Gagnon .circumstances certain under with dispensed be can hearing preliminary The .hearing

 are proceedings revocation parole for Morrissey in established guarantees process due the that

 to right the that states also Gagnon ,However .proceedings revocation probation to applicable equally

.basis case-by-case a on made be must proceedings revocation in counsel appointed

 these Among .case that in unaddressed left were that issues legal of host a to rise gave Morrissey

 hearing impartial and ,notice of form ,promptness ,location including (issues hearing preliminary :are

 ,required proof of nature ,proof of burden and standard :are Chapter this in discussed are which ingsproceed revocation to related issues Other .admissibility hearsay and); examination-cross and tationconfron and ,evidence of disclosure ,hearing of notice including (issues hearing revocation); officer

 exclusionary the and ,proceedings revocation of disposition ,diligence due ,testimony on limitations

Gagnon and Morrissey of viability continuing the Despite .cases parole/probation to applied as rule

 proceedings revocation in guarantees process due greater extend to refused has Court Supreme the

.cases two these in enunciated than

 Court Supreme 1984 the with accordance in addressed is decision Miranda the of application The

 the on depends given be must warnings Miranda the Whether .Murphy .v Minnesota of decision

 to is evidence the if apply does Miranda ,interrogation custodial a is it If .questioning the of nature

 probation subsequent a in use for admissibility its Moreover .trial criminal subsequent a in used be

 require states Some .decisions judicial or law state by determined is proceeding revocation parole or

 .not do others; admissible be to evidence the for given be must warnings Miranda the that

 saying ,Morrissey in guarantees process due the expand to refused Court the ,Romano .v Black In

 Supreme the ,Georgia .v Bearden In .probation revoking before incarceration to alternatives sideredcon has it that indicate to court sentencing a require generally not does clause process due the that
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

178

 ground the on solely fees or fine a pay to failure for revoked be cannot probation that stated Court

 a If .fee or fine the pay to ability financial the have not did and indigent was probationer the that

 court or ,fees ,fines the pay to means financial the have not did ,indigent was parolee or probationer

 imprisonment than means alternative an then ,them pay to effort faith good a made had and ,costs

 in ,Finally .obligations financial any discharge to parolee or probationer the to available made be must

 exclusionary the that held Court Supreme the ,Parole and Probation of Board Pennsylvania .v Scott

.proceedings revocation in apply not does rule

 other any of request the honor state asylum an that mandates Constitution States United the While

 to state from considerably vary extradition on rules the ,crime a of accused person a extradite to state

 questions whenever counsel legal their consult to advised are officers parole/probation hence; state

 left have who parolees and probationers ,Nevertheless .arise documentation extradition concerning

 are state another in found are and permission without supervised being were they which in state a

 will person that then ,state a leave to permission has parolee or probationer a If .extradition to subject

.Supervision Offender Adult for Compact Interstate the of rules the to subject be

NOTES

.htm.pandp/bjs/gov.usdoj.ojp.www See 1.

.(1972) 471 .S .U 408 ,Brewer .v Morrissey 2.

.(1973) 778 .S .U 411 ,Scarpelli .v Gagnon 3.

480. at .S .U 408 ,Brewer .v Morrissey 4.

482. at .Id 5.

485. at .Id 6.

488. at .Id 7.

488-489. at .Id 8.

.(1973) 778 .S .U 411 ,Scarpelli .v Gagnon 9.

 the at counsel requires Gagnon ,closely Read .)1976 .Cir th8 (450 d2 .F 535 ,Parratt .v Kartman 10.

,Percy .v Ermen Van .,g.e ,See .instances most in hearing final the as well as hearing preliminary

 .v Kemp); 1976 .Wis .D.E (.1279Supp .F 419 ,Schmidt .v Cresci); 1980 .Wis .D.E (791 .Supp .F 489

.(1983) 874 d2 .E.S 301 829, .Ga 250 ,Spradlin

.(1973) 760 d2 .S.Y.N 339 311, d2 .D .A 40 ,Oswald .v McLucas 11.

.(1973) 93 .Rptr .Cal 108 319, d3 .App .Cal 32 ,Croix La re In 12.

.(1973) 46 d2 .P 512 283, .App .Ariz 20 ,Settle .v State 13.

.(1976) 78 .S .U 429 ,Daggett .v Moody 14.

.(1976) 705 d2 .W .N 243 640, .App .Mich 68 ,Hardenbrook .v People 15.

 119 .S .U 449 ,dismissed appeal ,)1979 .App .Crim .Tex (880 d2 .W .S 586 ,State .v Vincent 16.

.(1980)

.(2001 .App Idaho (929 d3 .P 21 ,Killeen .v Loomis 17.

.(1976 .Cir th8 (1062 d2 .F 535 ,Pattman .v States United 18.
Revocation

8 CHAPTER

179

 the and crime new a of commission the alleges petition revocation a where that held ,Morrissey in inghold s’Court Supreme the incorporated that procedure criminal of rules federal interpreting in ,pealsAp of Court Circuit Ninth which in ,)1997 .Cir th9 (1090 d3 .F 155 ,Havier .v States United See 19.

 defendant a then ,violated being probation of condition the from evident not is charged being offense

.violating with charged is he statute specific the of notice receive to entitled is

.(2008 – .App ,Crim .Okla (201 d3 .P 188 ,State .v Wortham 20.

,Mancusi .v Warren rel ex People); 1973 (786 .Rptr .Cal 107 1006, d3 .App .Cal 31 ,Ricks re In 21.

 382 d2 .E .N 289 193, d2 .App Ohio 320 ,Coldwell .v Parker); 1973 (882 d2 .S.Y.N 339 279, d2 .A 40

.(1972 .App .Crim .Tex (353 d2 .W .S 487 ,Ates parte Ex); 1972(

.(1978 .D .N (464 d2 .W .N 264 ,Hass .v State 22.

.(1978 Iowa (449 d2 .W .N 269 ,Nangesser .v State 23.

.(2001 .Dist 2 App .Fla (470 d2 .So 802 ,State .v Nelson 24.

.(2002 .Dist 4 .App .Fla (76 d2 .So 805 ,State .v Perez 25.

 411 d2 .W .S 574 ,Wyrick .v Abel In); 2002 .Dist 5 .App .Fla (526 d2 .So 826 ,State .v McMahill 26.

 had he that officer hearing a of affidavit mere the that held Court Supreme Missouri the ,)1978 .Mo(

 or revocation a support to enough not was individual the to sent be report violation a that directed

.parole

.(2001 .App .Wis (236 d2 .W .N 633 ,VanBronkhorst of Commitment re In 27.

.(1976 .ed .rd3 (57 ,States United the in Systems Parole ,Hanrahan .K and Leary’O .V 28.

.(1979 .Y.N.D.E (1230 .Supp .F 470 .,Ctr .Corr .Met ,Warden .v Augello 29.

.(2004) 36 .S .U 541 30.

.(2006) 813 .S.U 547 31.

.(2004 .-Cir nd2 (332 d3 .F 389 32.

 .App .Kan (363 d3 .P 158 ,Palmer .v State); 2004 .Cir th8 (840 d3 .F 382 ,Martin .v States United 33.

 643 D3 .Rptr .Cal 87 ,Stanphill .v People and); 2007 .Ind (438 d2 .E .N 868 ,State .v Reyes); 2007

.(2009 .Dist D3 .App .Cal(

.(2004 - .C .D .D (1 nd2 .Supp .F 354 34.

 ,also see); 2009 .Or (213 rd3 .P 203 ,Supervision Prison-Post and Parole of Board .v Hara’O 35.

 .(2009 .Cir th5 (73154 WL 2009 ,Quarterman .v Williams

 .(2006 .App Idaho (1459803 WL 2006 36.

.(1980) 56 .S .U 448 ,Roberts .v Ohio 37.

 d2 .E .N 868 ,State .v Reyes ,also see; 2009 .App .Crim .Okla (179 d3 .P 203 ,State .v Hampton 38.

 the” test trustworthiness substantial the “found Court Supreme Indiana the which in ,)2007 .Ind (438

 revocation a at admitted be should that evidence hearsay the determining for means effective more

.test balancing the than hearing

.(2008 .App .Ga (490 d2 .E .S 668 ,State .v Brown 39.

.(2001 .Kan (310 d3 .P 30 ,Graham .v State 40.

 d2 .So 994 ,State .v Thompson ,also see); 2009 .App .Crim .Okla (179 d3 .P 203 ,State .v Hampton 41.

.(2008 .Dist 3 .App .Fla (468
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

180

.(1973) 778 .S .U 411 ,Scarpelli .v Gagnon 42.

.(1972) 25 .S .U 407 ,Hamlin .v Argersinger and) 1963 (335 .S .U 372 ,Wainwright .v Gideon See 43.

.(1973)791 778, .S.U 411 ,Scarpelli .v Gagnon 44.

.(2006 – .App .Cr .Tex (1687682 WL 2006 ,Carmona parte Ex 45.

 and 1143 d3 .P 28 ,Sanchez .v State ,also see); 1999 .Cir .th5 (300 .rd 3 171 ,Johnson .v Williams 46.

 violations claimed the of notice written :include probationer a to afforded rights minimum the that edenunciat Court Supreme Dakota North the which in ,)2007 .D .N (81 d2 .W .N 740 ,Hemmes .v State

 to and person in heard be to opportunity an ,him against evidence the of disclosure ,probation his of

 the by statement written a and ,body hearing neutral a; evidence documentary and witnesses present

 States United Circuit Ninth the which in ,)1997 .Cir th9 (1278 d3 .F 122 ,Commission Parole States edUnit .v John also See .probation revoking for reasons the and on relied evidence the to as finder fact

 the of discretion the within leaves law the which in circumstances in ,that stated Appeals of Court

 entitled individual the is only not ,parole s’individual an revoke to whether decision the board parole

 accurate of requirements six the by abide must authority parole the also but hearing revocation a to

 “.process due of requirements minimum “the satisfy to necessary as Morrissey in out set finding-fact

 29 ,Giddings .v State ,also see); 2002 – .Dept 3 .D .A .Y .N (416 d2 .S .Y .N 737 ,Travis .v McCants 47.

.(2001 .Mont (475 d3 .P

.(2008 .App Comwlth .Pa (710 d2 .A 952 ,Parole and Probation of Bd .Penn .v Jones 48.

.(2007 .Cir th6 (464 .Appx .Fed 215 ,Davis .v Cotten 49.

 an if that held Court Supreme Kansas the which in ,)2008 .Kan (220 d3 .P 195 ,Hall .v State 50.

 another in arising conviction felony new a of result the as incarcerated is violator probation alleged

 a execute not does but detainer a lodges it if violation probation a waive not does state the ,county

 see ,sentence consecutive a on imprisoned is violator alleged the while warrant violation probation

 to applicable equally is principle legal This .)2007 .Neb (96 d2 .W .N 730 ,Hernandez .v State ,also

 of Court Circuit Eighth the ,)2001 – .Cir th8 (1139 d3 .F 271 ,Kedrick .v Malave In .system federal the

 he where hearing revocation prompt a in interest liberty no had parole federal a that held Appeals

.warrant violator parole a on custody into taken never was

.(2006 .Dept 3 .Div .App .Y .N (475 d2 .S .Y .N 826 ,Parole of .Div State York New .v Noble 51.

 th10 (674, .Appx.Fed 18 ,Champion .v Roberts ,also see); 1976 (78 .S .U 429 ,Daggett .v Moody 52.

.(1997 .-Cir

 WL 2007 ,Williams parte Ex ,also see); 2007 .App .Cr .Tex (735 d3 .W .S 235 ,Cordova parte Ex 53.

.(2007 .App .Cr .Tex (1264126

 .App .Cmwlth .Pa (616 d2 .A 963 ,Parole and Probation of Board Pennsylvania .v McKenzie 54.

 .Cmwlth .Pa (257 d2 .A 942 ,Parole and Probation of Board Pennsylvania .v Prebella ,also see); 2009

 district federal a) 2008 .Y .N .D .S (325 D2 .Supp .F 572 ,Taylor .v Suce in ,further Note .)2008 – App

 long as hearing revocation parole final a at present be to right the waive can parolee a that held court

.intelligently and knowingly made is waiver the as

.(2009 .Cir th5 (911 Appx.Fed 309 ,Garner .v States United 55.

.(2007 .Dept 4 .Div .App .Y .N (783 d2 .S .Y .N 835 ,Dennison .v Peek 56.

.(1996 .C .D .A .C (1413 d3 .F 84 .,al et ,Columbia of District .v .al et ,Ellis 57.

 stated Court Supreme Island Rhode the which in ,)2001 .I .R (375 d2 .A 786 ,State .v Hampton 58.

 reasonably adduce to is proceeding revocation probation a during proof of burden s’State the that

.probation his of terms the of one of violation s’defendant the of evidence satisfactory
Revocation

8 CHAPTER

181

.(2009 .App .Ind (282 d2 .E .N 904 ,State .v Smith 59.

.(2002 .App .C .N (537 d2 .E .S 562 ,Terry .v State 60.

 that acknowledged court appellate the ,)2000 .App .C .N (807 d2 .E .S 540 ,Tennant .v State In 61.

.doubt reasonable a beyond proven be not need pendedsus is sentence a which upon condition a of probationer a by violation alleged an that rule general

 1281 d2 .A 764 ,Shannon .v State and) 2001 ,Tyler .App .Tex (297 d3 .W .S 51 ,State .v Pettigrew 62.

 .v States United and) 2001 .Cir th8 (645 Appx .Fed 11 ,Crain .v States United); 2001 .App .Conn(

 nd2 the for Appeals of Court States United the which in ,)2001 .Cir nd2 (163 d3 .F 239 ,Thomas

 the whether determining in applied standard evidence the of preponderance that stated Circuit

Islands Virgin the of Government ,however ,See .release supervised his of terms violated defendant

 Appeals of Court Circuit Third States United the which in ,)2001 .Cir rd3 (293 d3 .F 239 ,Martinez .v

 the that satisfied reasonably only be to need court district a probation revoke to order in that stated

.conditions and terms its violated had defendant

.(2002 ,Austin – .App .Tex (444 d3 .W .S 82 ,State .v Armstrong 63.

.(2000 – .App .Crim .Ala (314 d2 .So 777 ,State .v Chenault 64.

.(2001 – .App .M .N (1143 d3 .P 28 ,Sanchez .v State 65.

.(2002 – .App .Minn (617 d2 .W .N 641 .,K .J of Welfare re In 66.

.(2008 ,[.Dist st1 [.App .Fla (186 d2 .So 987 ,Ferguson .v Commission Parole Florida 67.

.(2008 .Kan (1231 d3 .P 182 ,Skolaut .v State 68.

.(1979) 1094 d2 .E .N 387 684, d3 .App .Ill 69 ,Felton .v People 69.

 .Fla (280 d2 .So 427 ,McGlothin .v State ,also See .)1980 .La (440 d2 .So 384 ,Varnado .v State 70.

.(1983 .App .Ct .Dist

.(1983 .App .Crim .Tex (817 d2 .W .S 649 ,State .v landStrick .,g.e ,see But .)1979 .App .Ct .Dist (87 d2 .So 369 .,Comm .Prob and Parole Florida .v Kish 71.

.(1976 .App .Crim .Tex (311 d2 .W .S 534 ,State .v Herrington 72.

.(1979 .App .Crim .Okla (1270 d2 .P 596 ,State .v Meyer 73.

.(1979) 793 d2 .E .S 255 254, .App .C .N 42 ,Dement .v State 74.

.(1979) 27 d2 .E .S 258 339, .App .Ga 150 ,State .v Gilbert 75.

.(1980) 293 d2 .P 605 9, .App .Or 40 ,Winters .v State 76.

.(1971) 222 .S .U 401 ,York New .v Harris 77.

 273 ,Petry .v State; grounds other on overruled ,)1979 .Va .W (780 d2 .E .S 251 ,Grimmer .v State 78.

.(1980 .Va .W (346 d2 .E .S

.(1979) 534 d2 .S.Y.N 417 778, d2 .D .A 70 ,Dillon .v Thiel rel ex People 79.

 the applying by issue the analyze still may court appellate the ,proceeding revocation a in plicableinap is trial speedy a to right Amendment Sixth the that holds court appellate an which in stancescircum those in even that note please nevertheless); 2008 .Mont (819 d3 .P 195 ,Triplett .v State 80.

 for ,)1972 (514 .S.U 407 ,Wingo .v Barker in Court Supreme States United the by established criteria

 ,example for ,See .trial speedy a to right s’defendant a of violation a was there whether determining

.(1996 .App .Ind (143 d2 .E .N 671 ,State .v Wilburn
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

182

 .F 931 ,Taylor .v States United also see); 2008 .Cir th9 (1257 d3 .F 526 ,Santana .v States United 81.

.(1991 .Cir th11 (842 d2

 ,hearing revocation a in ,probationer a that held has court appellate one least at ,Nevertheless 82.

,State .v Reese See .constitution state its under right a as apparently ,trial speedy a to right a has

.(1993 .Wyo (82 d2 .P 866

.(2008 .App .C .N (165 d2 .E .S 660 ,sonJack .v State See .statute state in codified is diligence due of right process due this Sometimes 83.

.(2008 .App .Miss (850 d2 .So 994 ,State .v Leech 84.

.(2008 .App .Kan (74 d3 .P 178 ,Myers .v State 85.

 Appeals of Court Circuit Tenth the ,)2008 .Cir th10 (1281 d3 .F 511 ,Romero .v States United In 86.

 receive to right legal a have not did offense criminal another for incarcerated being parolees that held

 .v Moody citing ,court the ,instead; revocation release supervised their on hearing immediate an

.violators parole as custody into taken were they until hearing parole saryadver an prisoners provide to duty constitutional no was there that held ,)1976 (78 .S.U 429 ,Daggett

.(2006 .Va .W (389 d2 .E .S 634 ,Inscore .v State 87.

 ,also see); 2008 .Super .Pa (285 d2 .A 943 ,Kalichak .v Pennsylvania of Commonwealth 88.

 and ,)2009 .App .Pa (616 d2 .A 963 ,Parole and Probation of Board Pennsylvania .v McKenzie

 a that affirm to continue courts appellate which in) 2009 .App .Ind (533 d.2E.N 903 ,State .v Vernon

.components distinct two has process revocation probation or parole

.(2001 .App .Conn (1215 d2 .A 767 ,Chambers .v State 89.

 1272 d2 .E .N 748 ,Renner .v People ,also see); 2000 .App .Ark (819 d3 .W .S 35 ,State .v Harris 90.

.(2001 .,Dist th5 .App .Ill(

 willful a Only) (2006 .Dist st1 .App .Fla (1182 d2 .So 944 ,Commission Parole Florida .v Mathis 91.

.(probation or parole of revocation justify will probation or parole of condition substantial a of violation

 .S 783 ,State .v Hendley ,also see); 2001 .,Dist st1 .App Ohio (917 d2 .E .N 765 ,Mynhier .v State 92.

.(1990 ,Houston - .App .Tex (750 d2 .W

 .I .R (375 d2 .A 786 ,State .v Hampton ,also see); 2001 .App Idaho (709 d3 .P 20 ,Leach .v State 93.

.(2000

.(2008 .App .Ind (993 d.2E.N 894 ,State .v Cooper 94.

 .Ark (569 d3 .W .S 42 State .v Morgan ,also see); 2001 .App .Ind (557 d2 .E .N 749 ,State .v Pitman 95.

.(2001 .App

.(2002 .Vt (1007 d2 .A 806 ,Brunet .v State 96.

 d3 .F 306 ,Tschebaum .v States United and) 2002 .Cir th8 (1011 d3 .F 276 ,Leigh .v States United 97.

 Connecticut a which in ,)2002 .App .Conn (43 d2 .A 787 ,Jones .v State ,also see); 2002 .Cir th8 (540

 which in one as probation revoke to whether determining of process the described court appellate

 and liberty s’probationer the in interests important the balancing by society of protection the and eroffend the of rehabilitation namely ,probation of purposes beneficial the consider must court trial the

.public the protect to need the against rehabilitation

 see); 2001 .Ct .App .Mass (744 d2 .E .N 757 ,MacDonald .v Massachusetts of Commonwealth 98.

 584 d2 .W .S 86 ,Leiderman .v State); 2001 .App .Crim .Ala (608 d2 .So 807 ,State .v Peoples ,also

.requirement statement written the satisfied to sufficient were hearing revocation probation a of scripttran the in findings oral that stated court appellate Tennessee a which in ,)2002 .App .Crim .Tenn(
Revocation

8 CHAPTER

183

.(2001 .App .Ind (1014 d2 .E .N 758 ,State .v Washington 99.

 .Ala (1234 d2 .So 794 ,State .v Evans ,also see); 2001 .Supr .Del (254 d2 .A 779 ,State .v Weaver 100.

 .D .E .App .Mo (736 d3 .W .S 77 ,Sutherland .v Boyle .rel ex State ,further see); 2000 – .App .Crim

.(2002

.(1977 .App .Cr .Tex (151 d2 .W .S 545 ,State .v Parker 101.

 which in ,)2001 .Comwlth .Pa (275 d2 .A 784 ,Parole and Probation of Board .v Worthington 102.

 not is hearing violation parole a at counsel to right the that stated court appellate Pennsylvania a

.(c (21 Section 42.12, Article .,Proc .Crim of Code .Tex ,also see; law ryregulato and law case ,law statutory on ,rather ,but constitutions federal or state the either on based

.(2001 .Conn (285 d2 .A 781 ,Cator .v State 103.

 317 d3 .W .S 77 ,State .v Prevato ,also see); 2002 .App .Ga (37 d2 .E .S 560 ,Patterson .v Gould 104.

 .(2002 ,Houston .App .Tex(

 Kentucky a which in ,)2001 .App .Ky (847 d3 .W .S 57 ,Kentucky of Commonwealth .v Dunson 105.

 counsel having not by violated not were rights process due s’probationer a that stated court appellate

.proceeding” Court Drug “a at probationer the represent

.(1998) 357 .S .U 524 ,Scott .v Parole and Probation of Board Pennsylvania 106.

.(1983) 660 .S .U 461 ,Georgia .v Bearden 107.

.(1984) 420 .S.U 465 ,Murphy .v Minnesota 108.

.(1985) 606 .S .U 471 ,Romano .v Black 109.

.(1998) 357 .S .U 524 ,Scott .v Parole and Probation of Board Pennsylvania 110.

.(1983) 660 .S .U 461 ,Georgia .v Bearden 111.

 the where ,)1970 (235 .S .U 399 ,Illinois .v Williams with consistent is decision Bearden The 112.

 .fine the pay to poor too are they because solely maximum statutory the beyond onmentimpris of period a to defendants convicted of class certain a subject cannot State a that said Court

 held Court Supreme Carolina South the ,)2008 .C .S (352 d2 .E .S 656 ,State .v Dangerfield In 113.

 had defendant the after checks fraudulent passing for sentence of imposition s’magistrate a that

 a conducting without ,sentence suspended of condition a as payments restitution make to failed

 to right s’defendant the violated ,pay to failure s’defendant the of willfulness the determine to hearing

.(2009 .Fla .D .M (1245 .Supp .F 591 ,McNeil .v Brian ,also see; process due

.(2007 .App .Neb (682 d2 .W .N 729 ,McCrimon .v State 114.

.(2009 .App .Kan (553 d.3P 206 ,White .v State 115.

 2875715 WL 2008 Monaghan .v State ,also see); 2006 .Wyo (459 d3 .P 149 ,State .v Ransdale 116.

 process due s’probationer a that stated court appellate Arizona an which in ,)2008 1, .Div .App .Ariz(

 fee and fine probation the pay to failure for revoked was probation his where violated not were rights

 towards amount minimal the even pay to effort no made had probationer the that shown was it where

.(2008 .D .N (405 d2 .W .N 746 ,senJacob .v State ,further see; employment obtain to effort no made had and order fees and fines the

.(1966) 436 .S .U 384 ,Arizona .v Miranda 117.

.(1977) 492 .S .U 429 ,Matheason .v Oregon 118.

.(1975) 33 d2 .A 337 222, .J .N 67 ,Davis .v State 119.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

8 CHAPTER

184

.(1968) 11 d2 .P 442 579, .Kan 201 ,Lekas .v State 120.

.(1978) 856 .Rptr .Cal 144 382, d3 .App .Cal 79 .,T Richard re In 121.

.(1979 .Ct .Co Monroe (599 .S.Y.N 423 19, d2 .Misc 102 ,Lipsky .v People 122.

.(1969) 260 d2 .S.Y.N 302 882, d2 .E .N 249 732, d2 .Y .N 24 .,W Ronald .v People 123.

.(1984) 420 .S.U 465 ,Murphy .v Minnesota 124.

.(1985) 606 .S .U 471 ,Romano .v Black 125.

.(1979) 706 d2 .P 593 391, .Colo 197 ,Cronin .v Miller 126.

.(1979) 357 d2 .P 593 341, .Colo 197 ,Miller .v Morgan 127.

.(1979) 478 d2 .A 400 190, .H.N 119 ,Knight .v Martel 128.
9 CHAPTER

 CONCERNING TRENDS EMERGING

 AND PROBATION OF LIABILITY

SUPERVISION FOR OFFICERS PAROLE

 INTRODUCTION

Doctrine” Charge Taking “.I

Supervision per Impro .II

Placement per Impro.III

Warn to Failure .IV

Liability Precludes Generally” Doctrine Duty Public “The .A

Exists Relationship Special a if Liability Be Might There .B

Risk Foreseeable Reasonably 1. 

Reliance 2. 

Issues These Examining Decisions Court .C

Defenses Immunity .V

Immunity Qualified .A

Immunity Official .B

Immunity judicial-Quasi .C

SUMMARY

 NOTES

185

Supervision for Officers Parole and Probation of Liability Concerning Trends Emerging

9 Chapter

187

INTRODUCTION

 claims liability personal examined have decisions court numerous decades several last the Over

 :of areas two on focused generally have decisions court These .officers parole/probation involving

 deliberate s’officer the by and offender an of” charge taken “has office supervision a whether) 1

 suits to immunity of defense of assertions) 2 and party third a injured has offender the indifference

 complaining the ,indifference deliberate of claims to regards in ,Moreover .officers individual against

 officer the whether is litigated issue the ,immunity of claims to regards In .warn to failure and ,mentplace improper ,supervision improper :actions of causes three of one asserted generally has party

.issues these examines chapter This .faith good in acted

DOCTRINE” CHARGE TAKING “.I

 parole and probation involving issues liability examined have nation the across courts many While

 third a to injury the for found be can liability whether regarding consensus no is there ,conduct officer

 .supervision s’officer parole or probation the under individual an of conduct the on based person

 to failure or ,placement ,supervision improper for action of cause a recognizing to central issue The

 indifference deliberate s’officer the by and offender the of” charge took “officer the whether is warn

 the that is concept legal this discussing in problem The .person another harm to offender the allowed

 of” charge taken “has officer parole or probation a whether to as agreement in not are courts various

.defendant a

 of 315 Section .Institute Law American the by issued treatise legal influential highly a is This .)ondSec (Torts of Restatement the authority legal as recognizes country the in jurisdiction every Almost

:states Restatement this

 causing from him prevent to as person third a of conduct the control to so duty no is There“

:unless another to harm physical

 duty a imposes which person third the and actor the between exists relationship special A) a(

or ,conduct s’person third the control to actor the upon

 a other the to gives which other the and actor the between exists relationship special A) b(

“.protection to right

:states Restatement the of 319 § addition In

 cause to likely be to know should or knows he whom person third a of charge takes who One“

 the control to care reasonable exercise to duty a under is controlled not if others to harm bodily

“.harm such doing from him prevent to person third

 from person third a prevent to duty no has individual an that is law tort under rule general the Thus

 individual the upon imposed is duty a then party third the and individual the between exists” tionshiprela special “a when that is rule this to exception the However .another to injury physical causing

 third the of” charge takes “individual the if arises duty a Such .conduct s’person third the control to

.1person

 the of sections two these in language the interpreted have courts appellate certain Nevertheless

 custodial has officer the unless that held have and restrictively fairly) Second (Torts of Restatement

 has officer the ,facility restrictive a in held being is defendant the ,is that ,defendant the of control

 or parole a that held have courts appellate state certain Hence .defendant the of charge taken not

 the supervising is officer the because simply defendant a of charge take not does officer probation

.2individual

 a ,circumstances certain under that recognized have jurisdictions other ,Nevertheless 

 liable be can and person the of charge taken has defendant a supervising officer probation or parole
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

9 Chapter

188

.3defendant the of supervision negligent the in resulting persons third to caused injuries for However 

 parolee a of charge take can officer probation or parole a that held have that jurisdictions those even

 ,definite be must defendant and officer the between relationship the that said have probationer or

.4continuous and ,established

SUPERVISION IMPROPER .II

 offender an supervising officer parole or probation a that held have that jurisdictions those for Even

 officer parole or probation a that held further have courts these ,individual the of charge take has

 officer the of actions the if supervision under person a by caused injuries for liable found be only can

 an to owed duty a on premised is indifference Deliberate .indifference deliberately somehow were

.5duty of breach that by caused proximately injuries and duty that of breach a ,individual

 one Whether 

 another to risk the creating person the whether on depends largely another to duty a owes person

.6person other the harm would omissions or acts s’person the that foreseen reasonably have could

 ,offender an of” charge taken “have to deemed be to were officer parole or probation a if even Hence

 reasonably been have not could it that determined were it if liability be not still would individual the

.person third a harmed offender the ,actions s’officer the by that foreseen

 are supervision negligent of issue the examining decisions judicial exemplary most the Perhaps

.7State .v Sandau and State .v Taggart

 who persons two by committed crimes of victims by sued were officers parole several and ingtonWash of State the for board parole the ,cases these of both In 

 sexual violent of history a had had parolee the case Taggart the In .parole on supervised being were

 adult and juvenile both in times numerous incarcerated been had He .abuse substance and behavior

 he that recommended agent parole a ,problems behavioral and history criminal his Despite .facilities

 he that conditions special with individual the for parole approved and agent parole the of mendationrecom the accepted board parole The .parole on placed again once and prison from released be

 individual the parole on While .testing urinalysis to submit and program abuse substance a complete

 another assaulted subsequently and board parole the by imposed conditions the follow to failed

.injuries severe her causing ,victim

 history a also and crimes violent committing of history a had too parolee this case Sandau the In

 parole his and release of conditions the violated individual the parole on While .abuse substance of

 no ,parole his of conditions the violating despite ,Nevertheless .parole his suspend to decided officer

 moved and Washington of State the left parolee the Instead .arrest his for issued was warrant parole

 was there ,parolee the of status absconder the of aware was agency parole the Although .Montana to

.girl old year nine a raped parolee the ,Montana in While .warrant arrest an issuing in delay a

 improperly acted officers parole certain that alleged plaintiffs The .officers parole individual and tonWashing of State the in Parole of Board the both against suit filed cases two these in victims The

 board parole the that ,parole on placed be parolees the that board parole the to recommending in

 the supervised improperly officers parole other certain that and ,parole granting in improperly acted

 .parole on were they while parolees

 are decisions such that stated court the ,parole granting action s’board parole the to regards In

 court The .liability from immunity absolute to entitled is board parole the therefore and judicial-quasi

 parole the to made officers parole of recommendations the to immunity absolute extended also

 were recommendations these that finding ,parole for individual an of suitability the concerning board

 them give did court the Nevertheless .actions their of all for immunity absolute to entitled were cersoffi that disagreed court the ,parolees of supervision the of issue the On .nature in judicial-quasi

 parole improper allegedly for liability from immune are officers parole that saying ,immunity qualified

 the with compliance substantial in and duty statutory a of furtherance in is action their if supervision

 parole that said court the ,addition In .guidelines regulatory relevant and superiors of directives
Supervision for Officers Parole and Probation of Liability Concerning Trends Emerging

9 Chapter

189

 the that shown been had it once reasonable were actions their that show to have not did officers

 conduct s’officer parole a if only attach would liability individual that stated Court the ,Moreover .linesguide relevant and superiors of directives the with compliance in duty statutory a performed officers

.procedures regulatory and superiors of directives the with compliance substantial in not was

 and Taggart in officers parole the by actions alleged the whether determine to proceeded Court The

 the with compliance substantial in not was conduct their whether fact of question a created Sandau

 steps certain take to officers parole required Washington of State the in agency parole the by lishedestab procedures and policy the that noted Court The .agency parole the of regulations and rules

 certain apply and ,visits field conduct ,testing drug regular perform ,namely; parolees supervising in

 that observed court the ,Moreover .parole of conditions the of violations of learning upon sanctions

 required as responsibilities certain perform to failed had officers parole ,Sandau and Taggart both in

 concerning issue fact a existed there that held court the Hence .directives and policies agency by

.issues fact the of resolution for court lower the to cases both mandedre and parolees their supervising in indifferent deliberately been had officers parole the whether

 a of actions the that foreseen reasonably been have could it that held also have jurisdictions Other

8State .v Starkenburg In .party third a injuring offender an in result would officer parole or probation

 officer parole His .murder for term prison a served having after parole granted been had defendant a

 to and vacation a for Washington of State the to go and Montana of State the leave to him allowed

 be would parolee the that Washington in officials the inform not did officer parole The .work for look

 took officer parole his and Washington in remain to decided parolee the Moreover .state their visiting

 s’parolee the address to actions no took but girlfriend new his to parolee by behavior abusive the ingconcern reports received had officer parole the ,addition In .Montana to return his secure to steps no

 parolee the ,girlfriend-ex now his and parolee the involving incident another following Finally .conduct

.others two wounding and friends the of one killing ,friends her of several and her ambushed

 argued Montana of State The .supervision negligent claiming lawsuit a filed victim the of family The

 disagreed court appellate The .law of matter a as unforeseeable were acts criminal s’parolee the that

 the that finding a supported case the in facts the that concluded court The .contention this with

 his against parolee the by violence of acts criminal foreseen have reasonably could officer parole

.jury the to issue causation a submitting justified and friends her and girlfriend-ex

Division in holding previous its examine-re to asking was Alaska of State the case recent more a In

,9Neakok .v Corrections of

,State In .supervision inadequate for action of cause a recognized that 

 shot then and girlfriend former his murdered parolee a ,10Cowles .v Corrections of Department

 to failed impermissibly officer parole the that alleging ,lawsuit a filed victim the of family The .himself

 seek to and ,behavior dangerous s’parolee the to response in act to ,parolees of supervision the inggovern guidelines and ,regulations ,statutes the with comply to ,violations parole report and enforce

 holding its reconsider to Court Supreme Alaska the asked State the Although .parole his revoke to

 and so do to declined court the ,liability officer parole regarding Neakok .v Corrections of Division in

 State the that and victims foreseeable s’parolee a to care of duty a owed State the that affirmed-re

.parolees of supervision inadequate for suit from immune not was

 consideration into taken have ,foreseeability of issue the examining in ,courts appellate Nevertheless

 a of violence of acts the Thus .parole or probation on supervised being person the of level risk the

 risk high a be to deemed is parolee a if hand other the On 11”.expectations of range the beyond lywhol be to as improbable or extraordinary highly so “be may crime level low a of convicted parole

 and offender the of supervision the to scrutiny closer much give generally will courts then ,offender

.12another harming from offender the prevent to care of duty higher much a owes officer the that deem

 there ,another to duty of breach a in results offender an of supervision improper the if even Finally

injury the and party third the to duty of breach the between connect causal a shown be must still
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

9 Chapter

190

 only not show must action supervision parole inadequate claiming case a in plaintiff a Thus .suffered

 sustained damages the that demonstrate to burden the carry also must but ,supervision inadequate

Kelley in ,example For .13supervision inadequate the for but avoided been have would plaintiff the by

 negligent] grossly [not was officer corrections community s’inmate an that stated court the ,14State .v

 ,school high junior a outside police the with encounter his following inmate the arrest a failing for

.woman a assaulted inmate the before months two than more occurred which

PLACEMENT IMPROPER .III

 claim This .15placement improper is asserted been occasionally has that action of cause Another

 restrictive less a in supervision under offender an places officer probation a where arises generally

 a case this In .16Justice Juvenile of Department Carolina South .v Faile is placement negligent ingclaim suit a exemplifies best that case The .party third a injures then offender the where setting

 was child the guilty pleading After .bicycle a of theft grand with court family in charged was juvenile

 for evaluation an to submitting of purpose the for Center Evaluation and Reception a to committed

 s’child the over concern expressed evaluation The .case his of disposition for recommendation a

 be to and year one for probation continue to child the ordered judge trial the and behavior aggressive

.home foster therapeutic a in placed

 a from gun and knife a stealing for expelled later was but home foster a in placed was child The

 biological his with child the place to decided then officer probation s’child The .officer police school

 not should probation s’child the why cause show to judge the before hearing a initiating while mother

 nine a assaulted violently child the ,mother his with was child the time the during ,Then .revoked be

.boy old year

 South under that noted court The .mother biological his with child the placing in actions his for munityim judicial-quasi to entitled was officer probation juvenile the whether was appeal on question The

 not did act the if immunity judicial to entitled were officials other nor judge a neither ,law Carolina

 judicial a constituted what determining in that observed court the Moreover .purpose judicial a serve

 whether determine to had court the Thus .act the of function and nature the to looked court the ,act

 ,act judicial a of function and nature the had child the of placement s’officer probation juvenile the

.immunity judicial-quasi to him entitling thereby

 appellate ,order court direct a to pursuant acting was individual the if that acknowledged court The

 situation a involved case this ,order court a executing when immunity judicial to entitled be might ceroffi an whereas Nevertheless .action that for immunity judicial-quasi grant to likely more were courts

 the that stated court the Moreover .order the of terms explicit the from deviated officer an which in

 proper no was there noted had workers juvenile where home a into child the placed officer probation

 custody had Justice Juvenile of Department the because that concluded court the such As .denciesten violent s’child the of knew officer probation the that stated court the ,Furthermore .supervision

 the supervise and control to duty independent an had therefore it ,individual dangerous known a of

.order court by him of custody retained it as long as others harming from him prevent to child

WARN TO FAILURE .IV

 an alleging officer parole or probation a against asserted be may that action of cause third The

 This .warn to failure is parolee or probationer a by person third a to injury the in resulting act improper

 is probationer or parolee the of level risk or status the of unaware party third a where arises situation

 a by danger potential the of warned never was and individual that of conduct criminal the by injured

 with relationship personal a form could party third injured The .myriad obviously are probationer or eeparol a with contact into come could party third a which in situations The .officer parole or probation
Supervision for Officers Parole and Probation of Liability Concerning Trends Emerging

9 Chapter

191

 foster a in offender the accept could person the ,person the for work could offender the ,offender the

 usually is liability Moreover .probationer or parolee the of neighbor a be just even or setting home

 a posed offender the that known have should or knew officer parole or probation the that premised

 the of status the of person third the notified have should officer the therefore and person the to threat

.person the to danger a pose might offender the that or probationer or parolee

 be may threat This .someone to threat potential a pose parolees or probationers all Nevertheless

 .parolee and probationer the of characteristics individual the on depending unlikely highly or likely

 in people other with engage offenders that is parole and probation of purpose whole the ,Moreover

 require might circumstances what know officer parole or probation the does how Thus .world free the

?not do circumstances what and else someone warn to her or him

Liability Precludes Generally” Doctrine Duty Public “The .A

 liability officer precludes generally” doctrine duty public “the that understanding the with starts One

 doctrine This .public the of member a injures who parolee or probationer a of conduct criminal the for

 the ,general in public the to owed is official public a upon law by imposed duty a when that states

 ,private to opposed as ,public a only to rise gives duty that of performance improper or inadequate

 member a inform to failing for liability officer be may there whether examining in Therefore .17injury

 that is premise initial the ,supervision under offender an of proclivities dangerous the of public the of

.warn to failure for liability no is there

 to exceptions are there ,liability from officers insulates generally doctrine this although Nevertheless

 provides specifically statute a) 2 ,undertaking the on relies plaintiff the and plaintiff the protect to takeunder affirmatively actions their by officials) 1 where inapplicable is doctrine The .rule general this

 a alleges plaintiff) 3 or; laws certain enforce to failure from ,member a is plaintiff the which of ,ualsindivid of class particular a to resulting injuries for official or officer an against action of cause a for

 public the to exception an Thus .18misconduct reckless or ,malice ,intent involving action of cause

 cases leading The .19victim the with” relationship special “a has officer the where exists doctrine duty

.below separately discussed are settings parole and probation the from

Exists Relationship Special a if Liability Be Might There .B

 of duty specific a owes officer an First .circumstances three under arise can relationship special A

 of danger a of victim the warn to fail to that foreseeable reasonably is it if victim identified an to care

 may policy agency or statute a Second .victim the to injury in result would aware is officer the which

 injury an sustaining victim the in resulted so do to failure the and victim a warn to obligation an sumeas affirmatively may officer the ,Third .victim a warn to circumstances certain under officer an require

.officer the by supervised being parolee or probationer the by

Risk Foreseeable Reasonably 1.

 and background criminal s’parolee or s’probationer the on based ,where arises warn to duty The

 As .party third specific a to harm of prospect a” foresee reasonably “can officer the ,conduct past

 or probationer the between relationship the of circumstances the means” foresee reasonably “such

 criminal a in conduct in engage may parolee or probationer the that suggest party third and parolee

 warn to duty a Consequently .20conduct past s’offender the to related or similar manner social-anti or

 relationship a of aware be should or of aware either is officer parole or probation the if only arises

 on based ,that knows also officer the and party third the and parolee a and probationer the between

 third the to harm of risk a poses relationship the ,offender the of circumstances and background the

.21party
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 may policy department or law state where cases juvenile in problem a is disclosure ,Nevertheless

 to record juvenile a disclose to wants who officer an ,cases these In .records of disclosure prohibit

 (disclosure-non for employer the by lawsuit possible a against protect to (employer prospective a

 to record such disclose to ,policy agency or law by allowed is such if ,writing in waiver a obtain should

.employer the

 threat a is there if is supervision parole/probation in ensue might liability where instance Another

 that interview an during officer parole a tells parolee a if ,example for ,victim identifiable an to made

 .problems her all for blames she whom husband her kill likely will and herself of control losing is she

 from it prevent to something do to obliged is officer the then ,)foreseeability (credible is threat that If

 provide agencies Some .policy agency by covered be should contingency this ,fact In .happening

 informed be must police the ,victim identifiable an to made threat a is there where instances in ,that

 likely will Courts .surveillance or custody temporary under placed be offender the or immediately

 special “a creates victim identifiable an and) threat a (foreseeability of presence the that conclude

.taken is action no if liability to lead can that public the and officer the between” relationship

 notify to official or officer a requiring statute a enacts legislature the if created be may duty a ,Finally

 an longer no is foreseeability and mandated legislatively is duty the ,circumstances such Under .eeparol or probationer a of status of change a regarding group identifiable an to belonging person a

 have statutes more and more ,movement rights’ victims the of part as ,years recent the Over .issue

 parole and probation for concerns liability adds turn in This .notification victim requiring enacted been

:of crime s ’defendant the of victim a fynoti immediately must department probation a that provides statute a Texas in ,example For .officers

.supervision community on placed been has defendant the that fact The)1(

.court the by defendant the on imposed supervision community of conditions The)2(

 community on placement s’defendant the or modified be may supervision community s’dantdefen the of conditions the which at proceeding or hearing any of location and ,time ,date The)3(

.22terminated or revoked be may supervision

 connection causal a demonstrate to necessary be still would it although statute this under Thus

 be not would foreseeability ,victim the to caused injury any and victim a notify to failure the between

.requirement notification this violated officer an that shown were it if issue an

Reliance 2.

 parole or probation a where is demonstrated be can relationship special a which in manner Another

 a to assurance some gives or danger in party third a place that steps affirmative some takes officer

 ever supervised being probationer or parolee the if person the warn will officer the that party third

 /probation the ,is that ,reliance of because created is Liability .party third the to danger a poses

 the all Of .victim the by suffered harm the to contributed that actions specific undertook officer parole

 reliance detrimental of assertion successful a ,claim warn to failure a involving theories legal different

 on upheld be and trial jury a in prevail will that claim warn to failure likely most the is party third a by

 or probation a when sympathetic less far are courts appellate and juries both because is This .appeal

.person third innocent an of safety the imperiled actually that measure a initiated officer parole

 department probation county the that decided Appeals of Court California the ,Meyers In .23mentDepart Probation County Angeles Los .v Myers of case the to central was reliance of principle This

 convicted a was probationer a that employer an warn to failing for liable not were employees its and

 probation the ,case this In .employer the from funds embezzled subsequently who and embezzler

 activities employment his in him direct or employer the with probationer the place not did department

 to was probationer the that irrelevant was It .employer the with relationship special other no had and

.restitution ordered-court to earnings his of some devote
Supervision for Officers Parole and Probation of Liability Concerning Trends Emerging

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193

 s’employee the of employer the to officer the by disclosure require that departments are There

 risks added carries policy This .own her or his on employment obtained employee the if even ,record

.above recommended as ,optional disclosure-non or disclosure make to is policy better The .cypoli of violation a or duty of breach a to amount then would disclose to failure because officer the for

 a where is liability of finding a support to basis the form can reliance which in circumstance other The

 the that warn to duty no had otherwise officer the whom party third a tells officer parole or probation

 is officer the parolee or probationer the of status in change any of party third the inform would officer

 third the injures subsequently parolee or probationer the if Then .so do to fails then and supervising

 .foreseeability reasonable demonstrate not need and claim negligence a assert can person the ,party

 the ,so do to failing and party third the notify to duty the assuming affirmatively by because is This

 establish to need the without party third the owed is duty a and assurance this on rely can party third

.foreseeability

 claim negligence a avoiding and establishing for section this in discussed precepts legal the Despite

 way best the Probably .basis case-by-case a on done be must liability determining ,warn to failure for

 other and victims notifying for procedures and policies agency closely follow to is liability avoid to

 any with strictly comply to and supervision under parolees and probationers regarding parties third

 is and victim identifiable an of aware is officer the if ,Finally .required otherwise not are that ligationsob any assume not should officer the ,addition In .notification victim regarding requirements statutory

 is there if ,then ,parolee or probationer a by victim that to injury or harm of threat credible a of aware

 ,immediate is threat if ,and supervisor s’officer the with raised be should matter the time appropriate

.threat potential the of victim the warn should officer the then; matter the staff to time no is there and

Issues These Examining Decisions Court .C

 a from arising issues the examining decision court best the perhaps that indicated has Research

 case this In .24Corrections Community and Parole of Department .v Rogers is warn to failure of claim

 later was parolee The .individual an of home the into breaking for prison to sent been had parolee a

 same the killed and kidnapped ,robbed parolee the ,furlough the after days Seventeen .furloughed

 the that alleging suit death wrongful a filed victim the of family The .burglarized earlier had he victim

.furlough s’offender the of victim the warn to failing in negligent were authorities parole

 a in element essential an that noted ,matter this examining in ,Court Supreme Carolina South The

 the ,Nevertheless .conduct such of victim potential a warn to or another of conduct dangerous the trolcon to duty no had one generally that observed further court The .)victim (plaintiff the to) officials rolepa (defendant the by owed care of duty legal a of existence the was negligence for action of cause

 s’individual an control and ,supervise ,monitor to ability the had defendant a where that stated court

 defendant the and individual the and defendant the between existed relationship special a ,conduct

.conduct dangerous s’individual the of victims potential warn to duty law common a have might

 being person a when arise would warn to duty a such that stated Court Supreme Carolina South The

 a made ever parolee the that presented evidence no was there case this in that found court the ,lessNeverthe .individual specific a at directed harm of threat specific a made had custody from released

 victim the warn to duty law common no had defendant the such As .victim the harm to threat specific

.release s’parolee the of

 not could it ,contrary the to evidence any Absent .decision this about made be can comments Several

 .prison to sent was he which for home same the into break again would parolee a that anticipated be

 violence of one not but ,offense serious a ,burglary for prison to sent was defendant the ,Moreover

 foresee reasonably could officials parole the that said be not could it Thus .murder or assault as such

 was that victim this against threat express an absent ,Thus .violence to escalate would conduct eesparol the that nor ,offense later the of victim same the be would offense first the of victim the that
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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194

 court appellate the how ,facts these on based ,conceive to difficult is it ,officials parole the by known

.25warn to failure a for negligence of finding a upheld have could

 requiring provisions statutory any of mention no makes decision this that is comment second The

 no were there rendered was decision this time the at that assume can one and notification victim

 demonstrate to had have still would plaintiff the ,were there if even Nevertheless .mandates statutory

 This .parolee the by committed act criminal the and warn to failure the between connection causal a

 parolee the likelihood the including ,variables several on depend to have would connection causal

 parole the of release the between proximity or delay time the ,violence of crime a commit would

 where place the and victim the of residence the between distance the ,victim the to injury the and

 have not could victim the that mean not does This .forth so and ,released ordered was parolee the

 to order in established been have to have would ,factors existing other with along ,these but prevailed

 by suffered injury the and authorities parole the of omission the between connection causal a show

.warn to failure a involving claims negligent examined courts other Several .victim the

 a with placed was parolee a ,Court Supreme California the by decided case a ,26State .v Johnson In

 suit brought then who ,plaintiff the assaulted parolee the ,thereafter Shortly .plaintiff the ,parent foster

 tendencies homicidal s’youth the of her warn to failed negligently had officer parole the that alleging

 the by act discretionary a was this that argued state The .cruelty and violence of background a and

 of duty no owed it that argued also state The .immunity to entitled was officer the and officer parole

 .plaintiff the to care

:27stating ,liable state the held and this rejected court The

 such was plaintiff the to relationship s’state the ,Johnson .Mrs with youth the placing party the As

 history s’parolee the by suggested qualities dangerous ,latent of warning to extended duty its that

 its that matter any of Johnson .Mrs inform to duty a owed state the ,Accordingly . ...character or

 these ,minimum a At .family Johnson the endanger might that known have should or knew agents

.record criminal s’youth the as well as ,tycruel and violence of background a and tendencies homicidal included have would certainly facts

 plaintiff the to risk the consciously consider to failed officer parole state a if that concluded court The

 be would state the ,injury s’plaintiff the to led failure that and ,him accepting in danger latent ,seeablefore a of plaintiff the warn to failed consequently and home her in parolee old-year16- a accepting in

.injuries such for liable

 of Division York New the against liability found court state a ,28State .v Georgen of case similar the In

 the on reliance s’plaintiff the that concluded court The .assaulted later he whom plaintiff the to mentemploy for recommended was who parolee a of background violent the disclose to failure for Parole

 sufficient were parolee the by posed danger the of ignorance complete her and recommendation

 best the perhaps is ,29Columbia of District .v Rieser ,case Another .disclose to duty a find to grounds

.here summarized briefly are but ,complex are siondeci the and case the of facts The .imposed was liability where officer parole a involving case known

 Thomas ,parolee a by murdered and raped was ,Rieser Rebecca ,daughter s’plaintiff the ,Rieser In

 finding in Corrections of Department Columbia of District the by assisted been had He .Whalen .W

 two in suspect a was parolee The .lived victim the where complex apartment the at employment

 ,complex apartment the in employment his during ,and parole of time the at cases murder-rape

 did board parole the but ,revoked not was Parole .girl young a of murder third a in suspect a became

 by employer the to given was warning No .closely parolee the supervise to officer parole the advise

.presence s’parolee the by posed risk potential the of officer parole the

 in suspect a as status his and record s’parolee the of police the by warned later was employer The

 the entered parolee the ,thereafter Shortly .anything do not did employer the but ,murders three the
Supervision for Officers Parole and Probation of Liability Concerning Trends Emerging

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195

 the against $201,633 of amount the in damages awarding verdict s’jury the on judgment entered biaColum of District the for Court District States United The .her strangled and raped and room s’victim

 District the for Appeals of Court States United The .appealed was decision The .Columbia of District

 prior s’parolee the reveal to duty a had officer parole the that stating ,award the affirmed Columbia of

 ,complex apartment the of management the to women against crimes related-sex violent of history

 the to harm of risk unreasonable and specific a prevent to order in ,parolee the of employer the as

.tenants women

 plaintiffs foreseeable reasonably to owed generally is duty actionable an that stated court The

 negligent) s’officer parole the case this in (s’actor the by harm of risk unreasonable an to subjected

:conduct

 that ensure to and ,women against crimes related-sex violent of history prior full s’Whalen eremploy potential a to reveal to duty general a him in vested officer parole a as position s’Abron

 him put Gardens McLean at Whalen of Placement .work his on placed were controls adequate

 gave and ,habits their observe to opportunity the with ,tenants women the to proximity close in

 could jury The ....rooms dormitory and apartments their to keys the to access potential him

 unreasonable and specific a present would duty general s’Abron of breach a that conclude

 duty special a to rise giving therefore Gardens McLean of tenants women the to harm of risk

.30them toward

DEFENSES IMMUNITY .V

 this system federal the In .31negligent clearly were question in acts the if even ,suits law from latedinsu are employees government of acts the ,courts federal and state both in ,speaking Generally

 official “as known is protection this systems state most In” .immunity qualified “as known is protection

 differently defense this analyze courts federal similar are immunity of types both Although” .immunity

 from officer an protects only not defense immunity an of assertion successful A .32courts state from

 two these ,Finally .33lawsuit a with forth going from plaintiff the prevents also but claim liability a

 .capacity) personal (individual her or his in sued is employee governmental a when apply defenses

 some then ,body governmental a of agent an as capacity official her or his in sued is employee the If

.asserted be must immunity sovereign of defense the of form variant

Immunity Qualified .A

 the is It .law federal under claim a alleging suit a in asserted is that defense a is immunity Qualified

 42 to pursuant filed violation rights civil a of allegations response in made defense common most

 are they when liability from officials government shields It .)claims 1983 as known (1983 § .C .S .U

 established clearly a violate not does conduct their and authority discretionary their within acting

 immunity Qualified .34known have would person reasonable a which of law constitutional or statutory

 exercise they when accountable officials public hold to need the :interests important two balances

 when liability and ,distraction ,harassment from officials shield to need the and irresponsibly power

.35reasonably duties their perform they

 of defense the assert could employee or agent government a whether determine to ,Traditionally

 question the asks first court A .analysis step-two a applied have courts federal the ,immunity qualified

 s’officer the that showed alleged facts the ,plaintiff the to favorable most light the in taken ,whether

 the were violated been have would right constitutional no If .right constitutional a violated conduct

 time the at established clearly was right the whether determine to has then court the ,right tutionalconsti a of violation the alleged plaintiff the ,however ,If .ends inquiry the ,established allegations

 a that clear sufficiently “are contours its when established clearly is right A .issue at incident the of

 clearly is law the if ,Finally” .law the violates doing is he what that understand would official reasonable
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 The .reasonable objectively was conduct s’defendant the whether decide to has court the ,established

 officials reasonable all unless reasonable objectively be to conduct s’official an consider would court

.36Constitution the violated conduct the that known then have would circumstances s’defendant the in

 qualified to entitled is officer government a whether determining for framework analytical the lishingestab rules the modified has opinion Court Supreme States United recent relatively a ,Nevertheless

 had courts appellate most ,Katz in decision the After .37Katz .v Saucier in outlined as immunity

 Supreme The .rigid was immunity qualified of issue the determining for framework the that assumed

 had plaintiff the case this In .38Callahan .v .al et Pearson in Katz in holding its examined-re Court

 .methamphetamine of distribution and possession unlawful of offense criminal the with charged been

 by right Amendment Fourth his violated had they that alleging ,him arrested who officers police eralsev against suit 1983 § .C .S .U 42 a brought then plaintiff the and charges dropped later State The

.warrant a without home his entering

 appellate several by recognized ,theory legal a existed there ,occurred arrest the that time the At

 a that held theory This .doctrine” removed once-consent “the as to referred ,country the in courts

 already had enter to consent when permissible was home a into officers police by entry warrantless

 .view plain in contraband observed had who informant or officer undercover an to granted been

.theory this disavowed had Court premeSu States United the by opinion an less much ,opinion court no arrest the of time the at Moreover

 protects immunity qualified of doctrine the that affirmed-re Court Supreme States United The

 clearly violate not does conduct their as insofar damages civil for liability from “officials government

 The” .known have would person reasonable a which of rights constitutional or statutory established

 the whether of regardless applies immunity qualified of protection the that recognized further Court

 unless applicable is immunity qualified that acknowledged Court the Because” .fact and law of tionsques mixed on based mistake a or ,fact of mistake a ,law of mistake a “is error s’official government

 the of time the at because and right constitutional established clearly a violated conduct s’official the

 removed once-consent the rejected had right constitutional established clearly no ,question in arrest

 More .immunity qualified to entitled were sued being officers police the that held Court the ,doctrine

 outlined approach analytical step-two the that held also Court the that was holding this for important

 in approach step-two this follow to able still were courts appellate Although .rigid too was Katz in

 the that clear were it if that said also Court Supreme States United the ,to wanted they if sequence

 process sequential this through go to compelled not were courts appellate the then ,right stitutionalcon established clearly any violated not had ,officer government the ,is that ,lawsuit the in defendant

.matter this on rule to order in

Immunity Official .B

 acts challenged s’employee the) 1 that establish and defense affirmative an as immunity mentalgovern raise must law state under sued being employee government a ,immunity official enjoy To

 reasonably or ,acting was employee the that and employment of course the during undertaken were

 undertaken were acts the) 2 ,authority her or his of scope the within ,acting was she or he believed

 jurisdictions Most .39nature in ,ministerial than rather ,discretionary were acts the) 3 and ,faith good in

 whether is test the such As .reasonableness legal objective of test a is faith good that state usually

 thought have could ,circumstances similar or same the under ,employee government reasonable a

 good subjective was there if determine to need no is there test this Under .justified were actions his

.40faith

 ,example For .malice of absence the as faith good characterize jurisdictions certain ,Nevertheless

 s’official the when claims law state from immunity official to entitled is official public a Minnesota in

 malicious or willful of guilty is official the unless ,judgment or discretion of exercise the require duties

 a requires context given a in available is immunity official whether of determination a Thus .wrong
Supervision for Officers Parole and Probation of Liability Concerning Trends Emerging

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197

 the whether) 2 and; ministerial or discretionary are acts alleged the whether) 1 :inquiry step-two

 and willful or malicious were ,immunity official by covered type the of though even ,acts alleged

 wrongful a of doing intentional the as action government protect will immunity official whether miningdeter of purposes for malice define courts Minnesota .protection s’immunity the of stripped therefore

.41right known a of violation willful the ,stated otherwise ,or ,excuse or justification legal without act

 is immunity official whether determining of purposes the for standard this under even Nevertheless

.42actions s’official an of nessreasonable legal the into inquiry objective an is malice of question the ,context given a in available

 official of claim a to entitled be not will officer an where circumstances two are there Ordinarily

 his of scope and course the within not is that act an performs officer the where is first The .immunity

 and negligence of claim a assert only need party aggrieving the ,situation a such In .authority her or

 officer the where is circumstance second The .43immunity official of defense the without is officer the

 only is immunity official of defense The .act discretionary a to opposed as act ministerial a performs

 act ministerial a performs officer an If .acts discretionary of performance the to response in available

.44immunity official of defense a assert cannot she or he then negligently

 exercise the for calls immunity official to entitled is employee public a which for” act discretionary “A

 reasoned reaching ,facts the examining entails turn in which ,judgment and deliberation personal of

 those are acts discretionary Thus .directed specifically not way a in them on acting and ,conclusions

 employee public a which for” act ministerial “A .process making decision of type some involve that

 arising ,definite and ,absolute ,simple is that one commonly is liability individual to subject be may

 .duty specific a of execution the merely requiring and ,exist to proved or admitted conditions under

 such with defines law the that and performed be to requires law the that those are acts Ministerial

 action the If .judgment or discretion s’official the to left is decision no that certainty and precision

 Consequently .ministerial is it ,choice no has official the which to duty a of performance the involves

 personally is she or he ,tort a commits ,duty ministerial a of performance the in ,official an where

.45position governmental no holds who person a as extent same the to tort the for responsible

 of assertion an approach courts appellate how of example good a is 46Torres .v Rhodes of case The

 for probation on placed been had plaintiff the case this In .negligence of claim a to immunity official

 had court trial the ,probation her of condition a As .animals to cruelty of offense misdemeanor the

 plaintiff the that branch local the with times several confirmed Having .Animals to Cruelty of ventionPre the for Society the of branch local a for service community of hours 50 perform to her ordered

 to motion a filed her supervising officer probation the ,service community her complete to failed had

 officer probation the notified SPCA local the ,filed been had motion the After .probation her revoke

.service community of hours of number siterequi the performed fact in had plaintiff the and records s’Society the with mistake a was there that

 plaintiff The .lawsuit the dismissed and claim s’officer probation the with agreed court trial The .nityimmu official claimed officer probation the; officer probation the against lawsuit a filed plaintiff The

 government that stated court appellate The .court appellate intermediate an to decision this appealed

 the from arising suits from immunity official to entitled are ,officers probation including ,employees

 the within acting) 3 are they as long as faith good) 2 in duties discretionary) 1 their of performance

 court the ,faith good in acted officer the whether examining in ,case this In .authority their of scope

 that stated court The .faith good determining for test ,subjective to opposed as ,objective an adopted

 prudent reasonably a if probationer a of arrest the causing in faith good in acts officer probation a

 the of arrest the causing that believed have could ,circumstances similar or same the under ,officer

 officer the by possessed information the and law established clearly of light in lawful was probationer

.revoke to motion the filed he time the at

 believe to reason every had officer probation the that noted court appellate the ,case Rhodes the In

 The .court trial the by mandated as hours service community her completed not had plaintiff the that
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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198

 in relied he which on information the verified-re and verified only not officer the that observed court

 their indicated had who judge the and supervisor his with consulted also he that but motion the filing

 the that held court the Thus .filed be revoke to motion a that request to decision his with concurrence

 official of defense the of elements the of all established conclusively court trial the in raised evidence

.immunity

Immunity judicial-Quasi .C

 of performance s’officer the from stems it but immunity official of variant a is immunity judicial-Quasi

 This .47acts nonjudicial to opposed as) judicial-quasi “term the hence (nature in judicial are that acts

 liability from immunity judicial absolute enjoy judges that principle legal the on premised is defense

 the in performed is act the unless ,motive the evil or act the erroneous how matter no ,acts judicial for

 delegate judges where that reasoned thus have courts Appellate .48jurisdiction all of absence clear

 may immunity judicial s’judge the ,court the for services perform to others appoint or authority their

 officer an if because important particularly is immunity This .49appointment or delegation the follow

.liability to bar ,qualified a to opposed as ,absolute an is it defense this raise successfully can

 officers probation or parole ,functions certain performing in that recognized have courts Appellate

 probation federal Thus .defense this assert can thus and acts judicial-quasi or judicial performing are

 they because suit from immunity absolute have reports presentence submit and prepare who officers

 critical most the of one of part integral an is perform they function the and court the of arm an as act

 Parole .officials parole to applies also reasoning legal same This .50process judicial the of phases

 the in and decisions parole in conduct their for liability from immunity absolute to entitled are officers

 officer probation a if that reasoned have courts the Thus .51powers making-decision their of exercise

 board parole a then ,liability from immune absolutely is judge a to information sentencing giving

.52immune absolutely be also should function judicialquasi its because immunity absolute enjoys board parole a to information parole giving employee

 In .acts judicial deemed be will officer probation or parole a by performed acts all not ,Nevertheless

 arrest seeking and proceedings revocation release supervised or probation initiating in officers bationpro protect not did generally immunity absolute that held court district federal a ,53Bostic .v Gilmore

 were officers probation and parole although ,that held court district federal Another .officer pervisionsu a than officer police a of that to akin more were acts these that concluded court The .54warrants

 to entitled only were they ,activities adjudicatory in engaged when immunity judicial-quasi to entitled

.55actions other their for immunity qualified

 not is it ,section this in examined decisions court various the reviewing from discern can one As

 acts what and immunity judicial-quasi afforded be should employee government a of actions what ingdetermin in courts federal the of approach the follow states Many .not would which and judicial eredconsid be would officer probation or parole a by performed functions which apparent readily always

.56approach functional the as known is This .not should

 invoking party the of activities the whether determine must court the ,approach functional the Under

 as functioning is party the whether or ,process judicial the with associated intimately are immunity

 is act an approach this Under 57”.court the of arm “an as or system judicial the of part integral an

 the if Finally .58it performing agent the of character the by not and character its by nature in judicial

 entitled be will person the then ,judge appointing or delegating the of that like are party the of acts

 a as immunity judicial-quasi assert to able be not will party the then ,not If .immunity judicial-quasi to

.59defense
Supervision for Officers Parole and Probation of Liability Concerning Trends Emerging

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SUMMARY

 Tort .offenders supervising with connection in liability in trends emerging with deals chapter This

 for order in offender the of” charge take “officer parole or probation the that requires often liability

 the to as courts the among disagreement considerable is there ,unfortunately ,and attach to liability

 is often liability ,met been has hurdle legal this Once .occurred has this which under circumstances

 to failure or ,offenders those of placement improper ,offenders of supervision improper on predicated

 at be foreseeably might who relationship special a have officers supervision whom with persons warn

 .others to harm caused that ways in behaved have to alleged are who sionsupervi providing officers to available are defenses of number a ,liability of types other with As .risk

NOTES

.(2002 2 .Div .App .Wash (197 d3 .P 54 ,Corrections of Department Washington .v Couch 1.

 – .Kan (677 d2 .P 961 .,Inc ,HTG .v Schmidt and) 2000 .Vt (816 .d2 .A 762 ,State .v Sorge See 2.

 .N 403 ,Hospital McKennan .v Small ,)1985 .Md (1297 d2 .A 492 ,Hopkins .v Lamb ,also see); 1998

.(1988 .Vir (373 d2 .E .S 372 ,Custis .v Fox and) 1987 .D .S (d2 .W

 .v Starkenburg ,)2006 – Alaska (353 d3 .P 151 ,Cowles .v Corrections of Department State See 3.

 ;(1999 – .Wash (400 d2 .P 979 ,Seattle of City .v Hertog and ,)1997 – .Mont (1018 d2 .P 934 ,State

.(1988 – .Mass (1017 d2 .E .N 521 ,Massachusetts of Commonwealth .v .L .A ,also see

 in ,)2002 – 2 .Div .App .Wash (197 d3 .P 54 ,Corrections of Department Washington .v Couch See 4.

 she or he before order court a have must officer corrections community a that noted court the which

 only can she or he ,order an such has she or he when even and; offender an of” charge take “can

.statutes applicable and terms its to according it enforce

 as negligence of elements the sometimes); 1995 – .H .N (297 d2 .A 662 ,Burke .v Hickingbotham 5.

.(2001 ,Antonio San – .App .Tex (221 d3 .W .S 70 ,Hills Terrell of City .v Builders Champion see; esdamag actual) 4 and ,cause proximate) 3 ,duty that of breach) 2 ,duty) 1 :parts four into down broken

 605 .,Corp Leasing Auto .v Manchenton ,also see); 2001 – .H .N (421 d2 .A 761 ,Lowney .v Kellner 6.

.(1992 .H .N (208 d2 .A

.(1992 .Sup .Wash (243 nd2 .P 822 ,State .v Sandau and State .v Taggart See 7.

.(1997 – .Mont (1018 d2 .P 934 ,State .v Starkenburg 8.

 Supreme Alaska the) 1986 .Ct .Sup Alaska (1121 d2 .P 721 ,Neakok .v Corrections of Division In 9.

 was ,Corrections of Division ,Services Social and Health of Department Alaska the that held Court

 woman another death to beat and strangled ,raped and boyfriend her and stepdaughter his killed lysubsequent who and violence and abuse alcohol of history a had who parolee a placing in negligent

 presence the or protection police have not did that village small a in state intoxicated highly a in while

 .officer parole a of

.(2006 – Alaska (353 d3 .P 151 ,Cowles .v Corrections of Department State 10.

.(2000 – 1 .Div .App .Wash (180 d3 .P 15 ,State .v Jones of Estate Quoting 11.

.(2002 .Wash (503 d3 .P 52 ,State .v Bell 12.

.Id 13.

.(2000 2 .Div .App .Wash (1189 d3 .P 17 ,State .v Kelley 14.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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200

 claiming those as often as asserted not are placement improper for action of causes Although 15.

 characterized better be could supervision improper as filed suits the of many ,supervision improper

 .App .Wash (180 d3 .P 15 ,State .v Jones of Estate ,example for ,see; placement improper of claims as

.(2000 1 .Div

.(2002 .C.S (536 d2 .E .S 566 ,Justice Juvenile of Department Carolina South .v Faile 16.

 .P 151 ,Trost .v Eklund ,also see); 1996 – .Cir 4 .App .La (582 d2 .So 685 ,Chambers .v Bouguille 17.

.(2006 .Mont (870 d3

 Metropolitan .v DePalma ,also see); 1996 – .App .Ct .Tenn (533 d2 .W .S 942 ,Niblack .v Miller 18.

.(2002 – .Cir th6 (187 .Appx .Fed 40 ,Nashville of Government

 liable not are officials public which under ,rule duty public the to exception an that stated Court premeSu Carolina South the which in ,)1999 – .C .S (542 d2 .E .S 525 ,County Aiken .v Arthurs See 19.

 can plaintiff the where recognized is ,duties public discharging in negligence their for individuals to

.plaintiff the to care of duty special a owed official public the establish

.(1980 29, October (ationAssoci Parole and Probation American the to Ketcher .D Judd of remarks unpublished on Based 20.

 parole and probation policy a ,foreseeability on based liability possible minimizing of purposes For 21.

 whether determining in government federal the by used that is consider to want might departments

 4, Chapter ,Manual Probation :Procedures and Policies Judiciary to Guide Its .employer an notify to

:provides 1983

Disclosure Regarding Decision

 warning no then ,exists risk foreseeable reasonably no that determines officer probation the If) 1(

.given be should

 shall she or he ,exists risk foreseeable reasonably a that determines officer probation the If) 2(

 but ,warning no give) a (:to whether ,rehabilitation his of aspects other or employment s’tionerproba the to jeopardy possible the and created risk the of seriousness the upon based ,decide

 but ,warning no give) b; (risk the minimize to sufficiently supervision s’probationer the increase

 disclosure the make to permitted be may probationer the ,appropriate When .posed risk the of ticeno on party to warning confidential a give) c (or; employment the from probationer the preclude

.disclosure the verify will officer probation the that understanding the with

76.016. § ,Code Government Texas 22.

 186 .Rptr .Cal 144 309, d3 .App .Cal 78 ,Department Probation County Angeles Los .v Meyers 23.

.(1978)

.(1995 – .C .S (330 d2 .E .S 464 ,Corrections Community and Parole of Department .v Rogers 24.

 on premised was Corrections Community and Parole of Department .v Rogers of decision The 25.

 (1989 – Iowa (633 d2 .W .N 434 ,State .v Sheerin In .decisions court decided previously other several

 existence the from arose and upon depended warn to duty the that held Court Supreme Iowa the

 the ,)1982 – .Minn (20 d2 .W .N 323 ,State .v Cairl In .victim identifiable specific a to threat prior a of

 made were threats specific where only existed warn to duty a that stated Court Supreme Minnesota

 California the ,)1980 – .Calif (728 d2 .P 614 ,Alameda .v Thompson in Finally .victims specific against

 inmate an of release the of warn to duty affirmative no had defendant a that held Court Supreme

.victims nonspecific at directed harm of threats nonspecific made had who

.(1968) 240 .Rptr .Cal 73 352, d2 .P 447 782, d2 .Cal 69 ,State .v Johnson 26.

243. at .Rptr .Cal 73 355, at d2 .P 447 785, at .Id 27.
Supervision for Officers Parole and Probation of Liability Concerning Trends Emerging

9 Chapter

201

.(1959 .Cl .Ct (1085 d2 .Misc 18 455, d2 .S.Y.N 196 ,State .v Georgen 28.

.(1977 .Cir .C .D (462 d2 .F 563 ,Columbia of District .v Rieser 29.

479. at .Id 30.

 intermediate an which in ,)1997 ,Antonio San – .App .Tex (13 d2 .W .S 949 ,Vasquez .v Murillo See 31.

 for test the meet still and negligently act could official government a that observed court appellate

.defense immunity official an of purposes for ,faith good

 Texas the which in ,)2004 – .Tex (417 d3 .W .S 114 .,Inc ,Builders Champion .v Ballantyne See 32.

 under immunity qualified to identical not but analogous is immunity official that noted Court Supreme

.law federal

 Court Supreme States United the which in ,)2009 ( 223 .S.U 555 ,Callahan .v .al et Pearson See 33.

 .M ,also see; liability to defense mere than rather suit from immunity is immunity qualified that noted

 which in ,)2009 – .Fla .D .M (1317 d2 .Supp .F 636 ,Board School County Seminole .v Soltys .rel ex .S

 a also is it but ,liability to defense a just not is immunity qualified that noted court district federal a

 of Estate .rel ex Bletz and) 2009 – .Cir th10 (721 d3 .F 565 ,Marcantel .v Poolaw ,suit from defense

.(2009 – .Div .S .,Mich .D .W (2132729 WL 2009 ,Gribble .v Bletz

 – .Cir th5 (404 d3 .F 537 ,Services Regulatory and Protection of Department Texas .v Gates 34.

.(1982) 800 .S .U 457 ,Fitzgerald .v Harlow ,also see); 2008

.(2009 – .Cir th11 (1317 d3 .F 555 ,Eslinger .v Case 35.

 and Protective of Department Texas .v Gates ,also see); 2001 (194 .S .U 533 ,Katz .v Saucier 36.

.(2008 – .Cir th5 (404 d3 .F 537 ,Services Regulatory

.Id 37.

.(2009) 223 .S.U 555 ,Callahan .v .al et Pearson 38.

 d.3W.S 65 ,Davis .v Yanero ,also see); 2008 – .Mich (217 d2 .W .N 760 ,County Wayne .v Oden 39.

 good in) 2; (functions or acts discretionary) 1 (:of employee or officer public a by performance gentnegli to applies immunity official that stated Court Supreme Kentucky the which in ,)2000 .Ky (510

.authority s’employee the of scope the within) 3 (and; faith

.(1998 ,Houston – .App .Tex (59 d2 .W .S 965 ,Justice Criminal of Department Texas .v Cobb 40.

 “;malice actual “is ,immunity official public defeating of purposes for” malice “,law Maryland Under 41.

 ,excuse or justification legal without act an requires immunity official defeat to required malice actual

 Ohio under); 2001 .Cir th4 (183 .Appx .Fed 24 ,County Worcester .v Khan see ,willfully and liberatelyde plaintiff the injure to being purpose the ,hate by influenced motive rancorous or evil an with but

 through ,seriously usually ,another harm or injure to design intentional and willful the is” malice “law

 .D .N (967 d2 .Supp .F 175 ,Warren of City .v Agastino’D see ,unjustified or unlawful is that conduct

.(2001 – Ohio

 a of employees Ohio); 2001 – .App .Minn (286 d2 .W .N 637 ,Hennepin of County .v Dokman 42.

 ,faith bad in ,purpose malicious with act they unless liability tort from immune are subdivision political

 – Ohio .D .N (967 d2 .Supp .F 175 ,Warren of City .v Agastino’D ,manner reckless or wanton a in or

.(2001

 – Worth Fort – .App .Tex (829 ,d2 .W .S 977 ,Services Mortician County Tarrant .v Guerrero See 43.

 lawfully not are official an of acts the if that stated court appellate intermediate an which in ,)1998

 is official individual the and ,State the against suit a not is official that against suit a then ,authorized

 and ,State the of acts considered not are acts unauthorized or unlawful because is This .immune not

.acts unofficial wrongful for capacities individual their in sued be can officials state
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

9 Chapter

202

.(1994 – .Tex (4 d2 .W .S 887 ,Hatley .v Kassin 44.

.(1995 ,[.Dist st1 [Houston – .App .Tex (496 d2 .W .S 897 ,Collins .v Moore 45.

(1995 ,[.Dist th14 [Houston - .App .Tex (794 d2 .W .S 901 ,Torres .v Rhodes 46.

 .v County Dallas see;” immunity judicial derived “as to referred sometimes also is defense This 47.

.(2002 – .Tex (552 d3 .W .S 87 ,Halsey

.(1998 ,[.Dist st1 [Houston – .App .Tex (413 d2 .W .S 960 ,Swindall .v Houston of City 48.

.Id 49.

 774 d3 .P 46 ,Sanchez .v State ,also see); 1998 – .Conn .D (176 d2 .Supp .F 3 ,Massey .v Poe 50.

 officer corrections community a that stated Court Supreme Washington the which in ,)2002 – .Wash(

.report presentence a though information provides it when court the of behalf on acts

.(1995 – .Cir th5 (122 d3 .F 68 ,Division Paroles and Pardons of Board .v Littles 51.

.(1995 – .Cir th5 (992 d2 .F 870 ,Kegans .v Johnson 52.

 ,Broome of County .v Gelatt ,also see); 2009 – .Va .W .D .S (496 d2 .Supp .F 636 ,Bostic .v Gilmore 53.

 ,(1994 – .Conn .D (73 .Supp .F 877 ,Dorsey .v Schiff ,however see); 1993 – .Y .N .D .S (61 .Supp .F 811

 for suits private from immune absolutely was officer probation federal a that stated court the which in

.revocation probation for petition groundless a filed he that claim a on predicated damages money

 court district federal a which in ,)1998 – .Pa .D .E (569 .Supp .F 7 ,Bucks of County .v Duffy See 54.

 the to related integrally actions for officers probation protects which immunity absolute that stated

 law to akin more were which acts investigative s’officer probation a to apply not did process judicial

.hearing probation of violation a for preparing or warrant arrest an seeking as such ,enforcement

 .D .E (194 .Supp .F 851 ,Pennsylvania of Commission Parole and Probation of Board .v Patterson 55.

.(1994 – .Pa

.(1976) 409 .S.U 424 ,Pachtman .v Imbler 56.

.(1983) 325 .S.U 460 ,LaJue .v Briscoe 57.

.(1998 ,[.Dist st1 [Houston – .App .Tex (413 d2 .W .S 960 ,Swindalll .v Houston of City 58.

.CV01-05-00418- .No) 2006 ,].Dist st1 [Houston – .App .Tex (117 d.3W.S 232 ,Gerstner .v Alpert 59.
10 CHAPTER

LIABILITY VICARIOUS

 INTRODUCTION

TRAIN TO FAILURE .I

HIRING IMPROPER .II

ASSIGNMENT IMPROPER.III

SUPERVISE TO FAILURE .IV

DIRECT TO FAILURE .V

ENTRUSTMENT IMPROPER.VI

 DISCIPLINE TO FAILURE .VII

 SUMMARY

NOTES

203

Liability Vicarious

10 CHAPTER

205

INTRODUCTION

 a in her or him with or for working somebody has who person a is supervisor a ,terms simplest In

 in used is” supervisor “term The .agency an of management and operation the for responsibility mateulti have who administrators the are hierarchy supervisory the of apex the At .capacity subordinate

 .directors or ,heads ,chiefs ,administrators parole /probation include to generally discussion this

 parole or probation including ,personnel field at mainly directed are officers against lawsuits Although

 ,defendants-parties as agency the and officials supervisory include to inclined are plaintiffs ,officers

 reflects does officer the what ,therefore ,and agency the for acts officer the that theory the on based

 supervisors include to plaintiffs benefits it ,strategy legal of matter a As .practice and policy agency

 satisfy to resources financial the have not may officers level Lower .lawsuit liability a in agencies and

 their of virtue by ,personnel supervisory if enhanced are recovery financial of chances ,Moreover .cyagen the or officers other by violations future similar prevent to position a in they are nor ,judgment a

 plaintiff the closer the ,employee the of position the higher The .lawsuit the in included are ,position

 may agency and supervisor the of Inclusion .agency state or county the of pockets deep the to gets

 hence ,interest of conflict a on based ,defense the of strategy legal the in disagreement create also

 .defendants the of some or one against claim s ’plaintiff the strengthening

,1Holt .v Brandon In

 judgment money a that ruled Court Supreme States United the ,decision 1985 a 

 that entity public the upon liability imposes” capacity official her or his in “officer public a against

 .suit the in defendant a as named was agency the not or whether of regardless ,her or him employs

 actual no had department police the of director the although that alleged plaintiff the ,case this In

 should director the ,policies administrative of because ,behavior violent s’officer police the of notice

 the ,immunity qualified with shielded be could director the although ,that said Court The .known have

 money a ,Code .S.U the of 42 Title of 1983 § under official public a suing in that preposition the portssup opinion s’Court the that opined Rehnquist Justice ,dissent in Speaking .liable held be could city

 that public the against collectible is” capacity official her or his in “official public the against judgment

,2Flaherty .v Retenauer In .official the employs

 Kelley .R James Judge Pennsylvania ,decision 1994 a 

:issue the clarify to case Brandon the from quotes

 or Memphis of City the by payable was judgment the whether was court the before issue he]T[

 was Memphis of City the that held court The .liable individually was Director Police the whether

 :cautioned but ,judgment the for responsible

 entity the on liability imposes” capacity “official her or his in “servant public a against mentjudg a that implied plainly have we 1983, § under arising cases recent three least at In

.explicit point that make now We .respond to tyopportuni an and notice received entity public the ,course of ,provided represents he that

 the given nor ,involvement of notified ,party a as named not was Pittsburgh of city the ,Retenauer In

 exonerated was it ,Therefore .plaintiff the with negotiations settlement in participate to opportunity

.case the in liability all from

Lawsuits Supervisory of Categories

 be may they ,First .implications varying with each ,ways various in categorized be may Lawsuits

 law tort under brought are fact in cases Most .both under or ,laws federal or state under brought

.3(courts Federal (Code .S.U 42 of 1983 § and) courts state(

 probable and) cases criminal with compared (win to needed proof of quantum lower a of terms in esadvantag enjoy and cases civil are Both 

 advantage added the have cases 1983 Section .awarded damages of form the in benefit financial

 she or he if ,order judicial by ,defendant the from fees s’attorney recover to able being plaintiff the of

 .decree consent a in results case the if even or ,allegations the of any in prevails
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

10 CHAPTER

206

 ,clients from .,e.i (sources possible two from coming as classified be may lawsuits liability ,Second

 In .)employees or subordinates from and ,public general the or ,parolees ,probationers as such

 .inaction or action by caused injury for liable is supervisor the that is allegation usual the ,case either

 cases of number increasing an ,claims liability’ clients from stem far thus filed cases most Although

 that employment of course the in suffered injuries or done acts for subordinates from arisen have

 .properly job her or his performed supervisor the had obviated been have could

 holds liability vicarious whereas ,does she or he what for liable held is supervisor a that means bilitylia Direct .liability vicarious and liability direct into classified be may cases liability supervisory ,Third

 officer the that theory the on based is This .do subordinates her or his what for liable supervisor a

.4practice and policy agency of reflective is does she or he what ,therefore ,and agency the for acts

.liability direct explores chapter next the whereas ,liability vicarious on focuses chapter This

 her or his in or individual private a as supervisor the against filed be may lawsuits liability ,Fourth

 his on acts supervisor the when arises individual private a as Liability .officer public a as capacity

 her or his undertake not will agency the ,cases these In .duty of scope the outside and own her or

 within acted officer that whether determination initial The .liable held if damages for pay or defense

 ,regulation agency or statute by otherwise provided Unless .agency the by made is duty of scope the

 ,lawsuits Most .agency administrative higher or court any to appealable not is determination such

 of nature the of regardless ,capacity official her or his in supervisor a against brought are ,however

 financial the broaden to as so liable agency the and officer the both hold to prefer Plaintiffs .act the

.recovery for base

 frequently most the of one is supervisor a of negligence from stemming liability indirect or Vicarious

 area the in cases decided Most .discussion extended merits ,therefore ,and liability of areas litigated

 probation to applied be should principles their but ,cases prison or police are liability supervisor of

 establish not will negligence Simple .liable be to supervisor a for) blame of level higher a” (ferenceindif deliberate “require cases decided most that noted be must It .well as supervisors parole and

.liability

TRAIN TO FAILURE .I

 criminal of areas corrections and enforcement law the in lawsuits of spate a generated has This

 from resulting damages monetary for actions tort entertained court state a 1955, as early As .justice

.5training improper

 ,skills sufficient possesses she or he which at point a to agency or supervisor the by trained or edinstruct been not has employee the that is cases these in allegation usual The 

 and agencies administrative that is rule The .job the in him of required activities or ,knowledge

 the subjects obligation this discharge to failure that and employees train to duty a have supervisors

 to failure of result the was violation such that proven be can it if liability to agency the and supervisor

.6training improper or train

 jail mandated have cases some ,parole and probation involve far thus decided cases no Although

,7Haas .v Owens In .programs training their improve or staffs their train to administrators prison and

 or his of violation the in resulted jail local the in personnel for training of lack that argued plaintiff the

 ,that held Circuit Second The .him against force of use the from stemming rights constitutional her

 failure its if liable be could it ,employees train to failure mere for liable be not may county a although

 added court The .indifference deliberate or negligence gross of level the reach to as severe so was

 .training inadequate grossly or nonexistent from arise could that quencesconse foreseeable the of knowledge imputed or actual have to considered fairly is municipality a that

,8Facteau .v McClelland In

 rights civil for liable held be might chief police a that held Circuit Tenth the 

 plaintiff The .act unconstitutional an commit who employees supervise or train to failure for violations

 by beaten was ,there while ,and ,facility jail local a at Police State Mexico New the by booked was
Liability Vicarious

10 CHAPTER

207

 officers the holding In .attorney an to access and telephone the of use denied as well as officers the

 duty affirmative an of breach a be must there ,attach to liability for order in that said court the ,liable

 well was it ,case this In .injury the of cause proximate the be must action the and ,plaintiff the to owed

 had they because department the in occurring were violations constitutional of instances that known

 of instances two in lawsuit under was itself jail the ,Additionally .press the by aired thoroughly been

,9McCoy .v Rock in ,Similarly .death wrongful

 police a approached Rock .Mr when ,decision 1985 a 

 severe a into turned quickly brawl a ,him with speak to wanted officer the whether inquire to officer

 grossly’ officers the eliminated have would training adequate because liable held was city the ,pectssus or citizens beating of custom or policy no had city the Although .enforcement law by beating

 .actions negligent

 to failure under liability establish to suffice subordinate a by act single a Will :arises question The

 indicates case Owens The .established and proven be must pattern a that hold cases Most? train

 .violation and train to failure between link a constitute to sufficient be may incident brutal single a

 pattern a for waiting of instead liability determine to violation of degree the solely considered Owens

 this answered has Court Supreme States United The .violations of series a on based develop to

 not could misconduct police of act isolated an that ruled Court the 1985, In .negative the in question

 decision This .10rights civil s’individual an violating for suit damage a to subject city a make ordinarily

 the hold to enough not was official county a by made decision hiring single a that held ,Brown .v maOklaho ,County Bryan of Commissioners County of Board in ,Court the when 1997 in reiterated was

 damage million $1.5 a overturned Court the ,Tuttle .v City Oklahoma ,case another In .11liable county

 shot had officer City Oklahoma an whom man a of widow the by won ,City Oklahoma against award

 the that argued case this in plaintiff The .robbery reported a investigating of process the in death to

 be should city the which for” policy “official an constituted force police its of training inadequate s’city

 that ruled and theory s’plaintiff the accepted Circuit Tenth the for Appeals of Court The .liable held

 between link necessary the provide to as negligent grossly and plainly so was action s’officer the

 of four for Writing .decision that reversed Court Supreme States United The .injury the and policy the

 a as training inadequate of notion the that said Rehnquist Justice ,majority the in justices seven the

 form to as life of deprivation unconstitutional of charge the from remote and nebulous too was policy

 only liability municipal to rise give could incident single a that added He .liability municipal for basis a

 considerably ,unconstitutional itself not is upon relied policy the where But .policymaker a to tributedat be can which ,policy municipal unconstitutional ,existing an by caused actually was incident the if

 fault requisite the both establish to case every in necessary be will incident single a than proof more

 constitutional the and policy the between connection causal the and municipality the of part the on

 .deprivation

 States United the 1998,13 In .training inadequate for liability municipal of issue the on used be to dardstan the was” indifference deliberate “held Court the 1989, in decided ,12Harris .v Canton of City In

 .situation the toward inaction her or his in indifference deliberate display must toradministra the ,liability supervisor for liable held be to that held Circuit Sixth the for Appeals of Court

 client a .,g.e (sources two from come train to failure for agencies and supervisors against Lawsuits

 subordinate a and ,trained properly been not has who officer an by violated been have rights whose

 obvious The .)adequately trained not was she or he because duty of course the in injury suffers who

 circumstances to due deficient be fact in may training but ,training proper is cases these in defense

 .expertise of dearth a and funds of lack as such ,control s’supervisor a beyond

 ,and courts the by 14defense valid a considered been not have generally constraints Budgetary? ingtrain of level desired the provide to allocated been have resources no if liable be supervisor the Will

 hold who those of attention the calls repeatedly she or he if faith good establish to able be should visorsuper the ,however ,documentation proper With .position difficult a in supervisor the place ,therefore

 training unstructured ,available are resources financial if Even .training for need the to strings purse the
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

10 CHAPTER

208

 properly be must program training the of quality and ,scope ,nature The .sufficient be not may alone

 training document to need a is There .identified performance job to relevance its and documented

 for necessary are sheets Attendance .content course substantiate to outlines detailed with sessions

.subordinates own s’one by brought lawsuits in purposes defense

HIRING IMPROPER .II

 employing before investigation background proper of importance the stress claims hiring Improper

 this when ,appointment for unfit is employee an where ensues Liability .job a perform to anyone

 the through it about known have should employer the when or employer the to known was unfitness

 hired department the ,16case one In .15foreseeable is act the where and ,investigation background

 recommendation negative a ,conviction assault employment-pre of record a despite officer police a

 of number a assaulted later officer The .application police falsified a and ,employer previous a from

,17case another In .liable held and sued were supervisor the and He .incidents separate in individuals

 record felony a despite hired was who officer police a of actions the for liable city a held court the

 complete the on based was Liability .brawls street many in involved been have to appeared who and

 .applicant the hiring before check background a conduct to agency the of failure

 United the ,18Brown .v Oklahoma ,County Bryan of Commissioners County of Board ,case 1997 a In

 miles 4 than more for vehicle the pursued deputies Two .it avoid to around turned then and pointcheck police a approached husband her and plaintiff the ,Brown In .official county a by made siondeci hiring single a for 1983 § under liable held be cannot county a that held Court Supreme States

 pointed deputies the of one ,stopped vehicle the When .hour an miles 100 of excess in speeds at

 the to went deputy other The .hands their raise to occupants the ordered and truck the at gun his

 after respond not did Brown When .vehicle the of out Brown ordered and truck the of side passenger

 .ground the to her swung and arm the by truck the from her pulled deputy the ,request second the

 sued Brown .replacement knee requiring possibly ,knees s’Brown to injuries severe caused fall The

 failed sheriff the that claiming 1983, § under injuries for county the and ,sheriff county the ,deputy the

 misdemeanor of history a have ,fact in ,did deputy The .adequately background s’deputy the review to

 ,maneuvering legal some After .him hired yet and this knew sheriff The .hiring his to prior ennessdrunk public and ,intoxicated while driving ,arrest resisting ,battery and assault including ,offenses

 involving case 1983 § a in liable held be county a Can :was Court the to presented issue sole the

 ?official county a by made decision hiring single a for force of use excessive

 the on depend “not does hire to decision s sheriff a for liability county that saying ,no said Court The

 it ,Rather .injury constitutional any inflict will screened inadequately officer any that probability mere

 by suffered injury particular the inflict to likely highly was officer this that finding a on depend must

 .cases train to failure in set standard” enceindiffer deliberate “the even than hiring improper for liability for standard higher a is This” .plaintiff the

 .hiring negligent on far thus Court Supreme States United the by decided case only the is This

 of liability than rather liability county involves case the although ,Moreover .well as parole and tionproba to applies it assume to reasons good are there ,enforcement law involves case the Although

 that if supervisors to apply not will it believe to reason no is there ,hiring negligent for supervisor a

 the that assumed be may it statute of absence the in ,sum In .Court the before up comes ever issue

 for set be will that standard same the is liability county for Brown in Court the by set standard high

 § a is case Brown the that ,however ,note to important is It .hiring improper supervisor of liabilities

 negligent for cases tort state in liability for standard lower a set may courts State .case) federal (1983

.hiring
Liability Vicarious

10 CHAPTER

209

ASSIGNMENT IMPROPER .III

 he not or whether ascertaining without job a to employee an assigning means assignment Improper

 .unfit be to known is she or he after job the on employee an keeping or ,it for prepared adequately is

 an leaving or vehicle motor government a drive to assigned driver reckless a be would Examples

 she or he which for position a in subordinate a leave or assign to not duty affirmative an has pervisorsu a that is rule The .center detention juvenile a in molestation child of history a had has who officer

 suspend to failure for superintendent police the on imposed was liability ,19Winfield .v Moon In .unfit is

 had reports disciplinary numerous after assignment nonsensitive a to officer errant an transfer or

 because ensued liability supervisory that held court The .attention s’supervisor the to brought been

 case a in ,Similarly .so do to failed but officer the suspend or assign to authority had supervisor the

 sued family s’victim the ,Dahmer Jeffrey of probation the with dealing 20publicity great attracted that

 reckless was ,Chester Donna ,officer probation new the that was allegation main Their .managementmis and negligence gross alleging others and ,officer probation s’Dahmer ,Wisconsin of state the

 following fully not and risk high as evaluated were who offenders of cases probation 121 accepting in

 procedure agency followed had ,however ,Chester .contacts home requisite making and procedure

 from immune were Chester and state the held further court The .part her on negligence or lessnessreck no found court the ,therefore; contacts home those for supervisor her to waivers submitted and

 .Wisconsin in immunity sovereign of doctrine the under capacity official their in liability

 .subordinates against reports adverse and complaints to attention careful pay must Supervisors

 implies also This .documented properly be must investigation the and ,investigated be must These

 subordinates of competencies and weaknesses the of aware be generally must supervisor the that

.competence or skill in wanting are they which in tasks perform to them assign not and

SUPERVISE TO FAILURE .IV

 activity employee oversee to responsibility the of abdication improper means supervise to Failure

 and ,discrimination racial ,inmates of abuse physical of pattern a tolerating are Examples .properly

 failure that say to as far so gone has court One .privileges and rights inmate of deprivation pervasive

 Tolerating .21action legal to rise gives policy adequate establish to supervisor the of part the on

 The .attaches liability which to indifference deliberate constitute might agency an in activities unlawful

 on act to failed she or he has and ,behavior of pattern a of know supervisor the Does :is test usual

 hold courts Some? behavior of pattern a of knowledge constitutes What :is question related A 22?it

 have others whereas ,prove to plaintiff a for difficult be may which ,required is knowledge actual that

 direct had official the and established is violation of history a if inferred be can knowledge that ruled

 .violations the committed who subordinates the over control supervisory close and

 whom against officer an supervise to failed allegedly chief police the ,23Johnson .v Thomas In

 of violation and ,negligence ,battery ,assault an in resulting ,filed been had complaints numerous

 In .supervise to failure for liability possible noted courts the ,cases both In .rights civil s’plaintiff the

 young two in resulted that crime a of scene the at officer senior the was Weaver .Lt ,24Ryan .v London

 at car patrol his in arrived he Although .person innocent an injuring and weapons their firing officers

 situation a in supervision proper provide to failure s’Weaver .Lt that said court Louisiana The .mandcom take and vehicle his exit to failed Weaver .Lt ,officers responding two the as time same the

 of scene the at parties innocent to injury bodily serious of risk grave a created firearms involving

 other and plaintiff the owed he duty a breached Weaver ,supervision provide to failing In .crime the

 to failure negligent for liability on law current The .it repair to obliged was he ,hence; present parties

:25follows as article an in summarized best is supervise
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

10 CHAPTER

210

 to” linked causally “be must supervisor a that hold Courts . . . .it end or correct to failed and ternpat the of known have must supervisor the ,violations constitutional of pattern a for liable be To

 to amounted act to failure her or his that and it of knowledge had he that showing by pattern the

 .continue pattern the that encouragement tacit hence and approval

 shut cannot supervisors that is principle this of importance The “:advice succinct this gives writer A

 take to position a in are they if associates their of acts the for responsibility avoid and eyes their

26“.nothing do and action remedial

DIRECT TO FAILURE .V

 proper and requirements specific the of employee the telling sufficiently not means direct to Failure

 an inform to supervisor the of part the on failure are Examples .performed be to job the of limits

 as guards prison advise to or censorship mail of limits proper the of mailroom prison a in employee

 refused court the ,27case one In .counsel and court to access of rights ,preserved of extent the to

 into entries warrantless make can officers field which under conditions the specifying directives tenwrit issue to chief police a of duty the be could it that stating ,entry illegal for action an dismiss to

 guidelines and policies establish to failure s’supervisor the that held court The .places residential

 .officer police a by girl young a of death shooting accidental the for liable vicariously him made tionsopera departmental various of execution the and warrants search of procurement the concerning

 procedures establishing in negligence s’chief the involved direct to failure the ,28case another In

 public for incarceration involved case The .treatment and diagnosis diabetic concerning jail the for

 ,stroke ,coma diabetic a in resulted that reaction diabetic a experienced arrestee The .drunkenness

 the for provide to failed ,therefore ,and condition this recognize not did jailer The .damage brain and

 .assessed was Liability .death in resulting ,care medical proper

 procedures and policies of manual written a is direct to failure of claim a against defense best The

 form must it and ,updated legally and accurate be must manual The .operations departmental for

 important and necessary the all cover must It .practice and theory in operations agency for basis the

 to required be employees that necessary also is It .undertake to is employee an job the of aspects

 statement signed A .agency the to orientation their of part as manual the with familiar be to and read

 way long a go will manual the understood and read has she or he that effect the to employee the by

.direct to failure on based liability from supervisor a exculpating toward

ENTRUSTMENT IMPROPER .VI

 are Examples .job the on him to entrusted facilities or equipment of supervision or ,use ,custody s’eeemploy an properly control or supervise to supervisor a of failure the to refers entrustment Improper

 a ,29Williams .v Roberts In .injury serious or death in result that firearms and vehicles of use improper

 .crew work a guarding of task the and shotgun a guard trusty untrained an gave superintendent farm

 liable warden the held court The .inmate an wounding seriously ,accidentally discharged shotgun The

McAndrews In .weapon dangerous a use to person untrained an permitting in negligence on based

 without fireman a with entrusted was patrolman reserve employed periodically a ,30Mularchuck .v

 The .armed not was who youth boisterous a killed that shot warning a fired He .training adequate

 to duty a have supervisors that held also have Courts .suit death wrongful a in liable held was city

 a to belonging nightstick or ,gun ,property had officer an where officers duty-off errant supervise

.agency government
Liability Vicarious

10 CHAPTER

211

DISCIPLINE TO FAILURE .VII

 ,suspension of form the in employee an against action take to failure the means discipline to Failure

 should or know supervisor the did and retained be to unfit employee the Was :is test The .degree ousdanger a to job the for unsuitability demonstrated has employee such where terminations or ,transfer

31?unfitness the of known have he

 either determined be can This .service for unfit obviously is who subordinate a terminate or/and plinedisci to steps proper and necessary all take to duty affirmative an has supervisor a that is rule The

 a indicating misconduct lesser of acts prior of series a from or misconduct gross prior of acts from

 the ,32Chapman .v Brancon In .presumed or actual be may knowledge Such .unfitness of pattern

 .officer police a by assaulted been had who couple a to damages in liable director police a held court

 problems mental having for and force excessive using for reputation s’officer the that said judge The

 known have to ought director the ,hence; precinct his in officers police the among known well was

 This .plaintiffs the assaulted he before him fired have to and propensities dangerous s’officer the of

 be could they which for couple the to injuries the of cause the be to held was inaction unjustified

 an interviewed personally who commissioner police a ,33York New of City .v McCrink In .compensable

 to deemed was ,duty on while intoxication of offense third a after him retained yet and ,officer errant

 by ,or known have should supervisor the where arises knowledge Presumed .knowledge actual have

 liability supervisory No .officer the of unfitness the known have could ,diligence reasonable exercising

 conduct prior the on based ,unforeseeable or minor were misconduct of acts prior the where arises

 .officer the of

 taken was action proper that prove to supervisor the for is retention improper against defense The

 .injury or damage the prevent to could she or he all did supervisor the that and employee the against

 careful be must and department the in on going is what know must supervisor a that suggests This

 under liability supervisory ,summary In .investigations those document and complaints investigate to

 Although .negligence of degree some on based all ,circumstances of variety a under arises law state

 of determination the ,used standard the of Regardless .standard lower a with go courts other ,enceindiffer deliberate to amounts negligence the when only liability supervisory impose courts most

 that all be not may distinction the so and ,jury or judge a it be ,fact of trier the by made is negligence

 and exclusive mutually not are above discussed liability of sources possible seven The .significant

 and ,supervise to failure mean also may assign or direct to failure negligent ,example For .overlap

 liability potential of area one than more cover ,therefore ,may complaint s’plaintiff The .versa vice

.act single a on anchored are allegations if even

SUMMARY

 and personnel parole and probation against litigation civil of source fertile a is liability Supervisory

 to supervisors for need the suggests strongly field this in law case developing The .departments

 because ,attention immediate deserves that area An .department their in subordinates ,of tenciescompe the and ,among on goes what of aware more be to and job their of limits legal the know

 in area neglected a is training that are Indications .train to failure is ,litigation court increasing of

 pay low of because ,that field a is general in corrections because deplorable is This .corrections

 justice criminal in subsystems other the than more even training needs ,status job unattractive and

 financial of because supervisors for arise Problems .upgraded be to is personnel of quality the if

 resources financial commit to makers decision political of reluctance the by occasioned constraints

 supervisor the for implications legal serious carries neglect Such .need perceived despite ,training to

 .attention immediate and proper given be must hence and ,makers decision and
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

10 CHAPTER

212

 Judicial .gone are parole and probation in supervisors among discretion unfettered of days The

 can it yet ,supervisor parole or probation a for frustrating sometimes and irritating be can scrutiny

 .deserves and desires public the something ,administration equitable and effective more to lead also

 with realities are they but ,blessing mixed a be may liability supervisory and intervention Judicial

.cope and live to learn must supervisors parole and probation which

NOTES

.(1985) 464 .S.U 469 ,Holt .v Brandon 1.

.(1994) 587 d.2A 642 ,Flaherty .v Retenauer 2.

 state a However 1983. § .C .S .U 42 on based suits rights civil hear to jurisdiction have courts State 3.

 .Tex (816 d2 .W .S 822 ,Allen .v Thomas See” .suit 1983 “a of jurisdiction assume to decline can court

1992. .[.Dist th14 [Houston .App

1984. September ,Probation Federal” .sorsSupervi Agency Corrections of Responsibilities and Liabilities Legal “1984. .Rolando ,Carmen Del 4.

.(1955) 212 d.2S.Y.N 140 ,York New of City .v Meistinsky 5.

.denied .cert ,)1979 .Cir d2 (1242 d.2F 601 ,Haas .v Owens 6.

.(1979) 980 .S.U 444 ,denied .cert ,)1979 .Cir d2 (1242 d.2F 601 7.

.(1979 .Cir th10 (693 d.2F 610 8.

.(1985 .Cir th10 (394 d.2F 763 9.

.(1985) 3077 .L .Cr 37 ,Tuttle .v City Oklahoma 10.

.(1997) 397 .S.U 520 ,Brown .v Oklahoma ,County Bryan of Commissioners County the of Board 11.

.(1989) 378 .S.U 489 12.

.(1998) 130 d.3F 156; 97-1591; 97-1516 .Nos ,Kandrevas and Backus .v Macigewski 13.

.(1975 .Tex .D.S (649 .Supp .F 460 ,County Harris of Sheriff .v Alberti 14.

 of Defense the and Liability and Police on Workshop AELE The ,Report Special AELE See 15.

12-1. .p ,)1982 ,Enforcement Law Effective for Americans (Complaints Misconduct

.(1974 .Ill .D.N (31 .Supp .F 383 ,Winfield .v Moon 16.

.(1959 .App .Ill (528 d.2E.N 159 ,Bellinger .v Peters 17.

.(1997) 397 .S.U 520 18.

.(1974 .Ill .D.N (31 .Supp .F 383 19.

.(1997) 1182 d.3F 105 Wisconsin of State .v Weinberger 20.

.(1974) 505 .Supp .F 383 ,Brier .v Ford 21.

.(1974 .Ill .D.N (31 .Supp .F 383 ,Winfield .v Moon 22.

.(1968 .C.D.D (1025 .Supp .F 295 23.

.(1977 .App .La (1334 d2 .So 349 24.

.(1980) 7 Law Federal under Officials Public of Liability Personal ,Weeks & Hardy 25.

.(1980) 24 Workers Correctional of Liability Civil ,Palmer .J 26.
Liability Vicarious

10 CHAPTER

213

.(1974 .Wis .D.E (505 .Supp .F 383 ,Brier .v Ford 27.

.(1974 .Cir th10 (877 d.2F 489 ,Lawson .v Dewell 28.

.(1969 .Mass .D.N (1972 .Supp .F 302 29.

.(1960 .J.N (820 d.2A 162 30.

122. at 11, note supra ,Report Special AELE See 31.

.(1981 Tennessee .D.W (10509 .No .R.L 32.

.(1974 .Y.N .App .Ct (419 d.2E.N 71 33.

11 CHAPTER

SUPERVISORS FOR LIABILITY DIRECT

 INTRODUCTION

CONSTITUTION THE BY GIVEN EMPLOYEES OF RIGHTS .I

LAW FEDERAL BY GIVEN EMPLOYEES OF RIGHTS .II

1963 of Act Pay Equal The .A

1967 of Act Employment in Discrimination Age The .B

1973 of Act Rehabilitation The .C

1990 of Act Disabilities with Americans The .D

1993 of Act Leave Medical and Family The .E

1978 of Act Discrimination Pregnancy The .F

Personnel Service Military and Veterans for Rights Employment .G

1964 of Act Rights Civil The .H

Harassment Sexual .I

1991 of Act Rights Civil The .J

Examinations Polygraph .K

Testing Drug .L

2008 of Act Nondiscrimination Information Genetic .M

LAW STATE BY GIVEN EMPLOYEES OF RIGHTS.III

POLICIES AGENCY BY GIVEN EMPLOYEES OF RIGHTS .IV

AGREEMENTS BARGAINING COLLECTIVE BY GIVEN EMPLOYEES OF RIGHTS .V

 SUMMARY

NOTES

215

Supervisors for Liability Direct

11 CHAPTER

217

INTRODUCTION

 cases where ,do subordinates their what for supervisors of liability (liability vicarious to contrast In

 are claims liability direct ,chapter preceding the of subject the ,)parolees or probationers by filed are

 by violated been have rights’ employees because allegedly supervisors against employees by filed

 .supervisor the

 ,suspension ,demotion ,termination ,hiring the in attach Responsibilities .ways of number a in and essourc varied from arises subordinates affecting acts for law state under supervisors of liability Direct

/supervisor in involved issues two usually are There .work s’supervisor a of phases reassignment or

 ,terminated be may employee an which for causes the with do to has first The .cases subordinate

 if ,followed be must that procedure the at looks second The .reassigned or ,suspended ,demoted

 and cause Both .reassigned or ,suspended ,demoted ,terminated be may employee an before ,any

:on laws by governed primarily are action supervisory for procedure

.Constitution the by given employees of Rights■ 

.laws federal by given employee the of Rights■ 

.law state by given employee the of Rights■ 

.policy agency by given employee the of Rights■ 

.agreements bargaining collective by given employee the of Rights■ 

 ,example For .cases many in interface ,fact in ,and exclusive mutually not are rights of sources These

 rights constitutional basic ,moreover; contract employee an supplement may laws state prevailing

 agency or contracts in provisions Unconstitutional .regulations agency or contracts individual overlay

 for condition a as right constitutional basic a of waiver The .court in challenged be may guidelines

.1litigation employment public in disapproval increasing found has employment

 BY GIVEN EMPLOYEES OF RIGHTS .I

CONSTITUTION THE

:are employees by invoked usually rights Constitutional

 the Petition and ,Assembly ,Press the ,Speech ,Religion of Freedom Amendment First■ 

Government

 suing as such ,rights constitutional exercising for disciplined or terminated is employee An :Example

 or ,religion of freedom exercising ,department the criticizing ,department or superior her or his

,2department the in efficiency her or his impairs did employee the what that prove to able is visorsuper the if disciplined be may employee an ,rule general a As .lifestyle unconventional an choosing

 or 

.3performance job affects demonstrably

 before ,department the of efficiency the affect or ,effect adverse an have must ,speech free of ciseexer the under fall ordinarily which ,criticisms ,example For 

,4Education of Board .v Pickering In .taken be can employee the against action adverse

 United the 

.department the of harmony the disrupts that statement a or ,made recklessly and knowingly mentsstate false of proof absent curtailed be cannot speak to right the that said Court Supreme States

Seizures and Searches Unreasonable against Right Amendment Fourth■ 

 supervisors that is rule general The .permission without searched is desk s’employee An :Example

 reasonable no has officer the if cause probable or warrant a without search a conduct validly may

.5privacy of expectation
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

11 CHAPTER

218

Incrimination-Self against Right Amendment Fifth■ 

 incriminate to used be might that statement a making into coerced be cannot they ,matter ploymentem an to related questions certain answer to required be may employees public although ,erthelessNev .investigation administrative an in incrimination-self against right no has employee an ,Generally

 a answer must he/s where position a in placed is employee public a If .prosecution criminal a in them

 a with provided be should person that ,termination face or truthfully employment to related question

.6warning Garrity

.7Jersey New .v Garrity in decision Court Supreme States United a from stems warning This this In 

 law of court a in used be might said they anything that warned were officers The” .fixing “ticket fictraf alleged of investigation state a of course the in questioned were officers police several ,case

 be would they refuse did they if but ,questions the answer to refuse could they that ,them against

 answers the and them to posed questions the answered officers police The .job their from terminated

.prosecution criminal a in them against used later were

 in used be could statements coerced these whether asked was Court Supreme States United The

 could employee public a although ,that held Court Supreme The .prosecution criminal subsequent a

 could answer to refusal and employment s’person the to related question any answer to required be

 not could employee the by provided answer any ,employment of termination a in result legitimately

 be could statements incriminating ,Nevertheless .prosecution criminal in introduced be subsequently

.8employment s’person the to related question a answer to refusing or answering of esconsequenc the of employee an informs rule Garrity the Hence .decision termination a in considered

 and ,Interests Property ,Process Due ,Protection Equal to Right Amendment th14■ 

Interests Liberty

 .hearing a without job the from dismissed is employee An :Example

 the passing upon job her or his to rights property acquires employee an that is rule general The

 away takes termination the When .law state by governed is which of length the ,status probationary

 association and standing s’employee an damages seriously it when as such (liberty s’employee an

 s’employee an limits that ,)disability other or stigma a imposes action the when or community the in

 The .amendment th14 the under rights to entitled is employee The .employment other for chances

 between exist must nexus sufficient that be to appears orientation sexual concerning rule general

.9dismissal justify to performance job and orientation sexual

 gay a that held court the ,case one In 

 or ,teachers or students with behavior homosexual her or his of made be must showing Some .ualhomosex was he because simply transferred or dismissed be not could teacher school high junior

 civil that held court the ,11case another In .10notorious was ,general in ,homosexuality her or his that

 related rationally was homosexuality their unless homosexuality for discharged be not could servants

 in orientations sexual diverse for tolerance in increases substantial of light In .performance job to

 less even be will courts that believe to reason every have we ,cases early these since decades the

.orientation sexual of basis the on actions adverse permit to willing

 within is conduct sexual private s’employee an that is rule general the ,cases activity sexual other In

 actions disciplinary Most .intrusion government from shielded ,therefore ,is and privacy of zone the

 which over life s’employee an of areas are these because sustained been not have supervisors by

 employee an of activities sexual the where is exception An .interest legitimate no has government the

 in interest an have well very might supervisor the ,cases these In .demonstrable easily be may mentdepart the on impact where town small a in place take activities such if or ,notorious and open are

.12employee the terminating and activities such investigating

 ,action disciplinary for basis a as used or prohibited be cannot party political a in membership Mere

 found court the ,14Pennsylvania of Court .v Giglio In .13office s’one of prerogatives the of abuse tentialpo and interest of conflict possible of because prohibited be can politics partisan in participation but
Supervisors for Liability Direct

11 CHAPTER

219

 his resigning of options the retains employee The .interests state important have to prohibition a such

 ,15Georgia in Similarly .court Pennsylvania the from exemption an requesting or employment her or

 which for interest of conflict a be to held were employee state a being and office political a holding

 The .time same the at both holding about restrictions imposing in interest compelling a had state the

 civil ,policy agency ,law state or federal by ,however ,superseded be can above stated rule general

 vary rights employee specific ,this of Because .agreements bargaining collective or ,rules service

.another to jurisdiction one from

 BY GIVEN EMPLOYEES OF RIGHTS .II

16LAW FEDERAL

 notable Most .law federal under subordinates to supervisors of liability direct govern statutes Several

:following the are

1963 of Act Pay Equal The .A

 work equal substantially performing are they if ,sex on based discrimination pay against women tectspro Act This 1938. of Act Standards Labor Fair the to added was) EPA (Act Pay Equal the 1963 In

 based differences pay to apply not does law The .counterpart male a as establishment same the in

.17productivity worker rewards that system a or ,merit ,seniority as such ,sex than other factors on

 among favor from fallen generally has EPA the 1964, of Act Rights Civil the of enactment the Since

.occasionally APA the to resort ,however ,plaintiffs

:show must plaintiff a EPA the under case facie prima a establish To

.employees male to paid were wages Higher) 1

.responsibilities and ,effort ,skills similar substantially requiring work equal For) 2

.18conditions similar under performed was work The) 3

 a as pay back to entitled is individual the lawsuit EPA an in prevails employee an if Finally .19inatediscrim to intent of showing a require not does case facie prima a of establishment the ,addition In

.20damages liquidated as pay back the to equal amount an and differential wage initial the of result

1967 of Act Employment in Discrimination Age The .B

 from 70 to 40 aged workers protects 1967 of) ADEA (Act Employment in Discrimination Age The

 age an if apply not does law The .governments local and ,state ,federal all to applies It .21ploymentem of aspects other and ,benefits fringe ,promotions ,pay ,discharge ,hiring in discrimination age

 is or ,system seniority fide bona a of part a is ,qualification job fide bona a is limit or requirement

 claim discrimination the that held case 2000 June A .22age than other factors reasonable on based

.23firing the precipitated that factors other all with along weighed be must

:prove must plaintiff the ,ADEA the under case facie prima a establish To

.Act the by protected group age the in was individual The) 1

.demoted or discharged was he/S) 2

 met that level a at job the performing was he/s ,demotion or discharge s’person the of time the At) 3

.24expectations legitimate s’employer the

:that show must plaintiff the ,case facie prima a establish to ,case hire to failure a In

.age of years 40 over .,e .i ,group protected a in was person The) 1
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

11 CHAPTER

220

.position the for qualified otherwise was person The) 2

.hired not was person The) 3

.25position the fill to person younger a hired employer The) 4

 the of evidence direct ,discrimination of case facie prima a established has applicant the Once

 will evidence indirect ,words other In .jury the to go to case the for necessary not is bias s’employer

.deliberation jury to claims s’plaintiff the take to suffice

:must plaintiff a ,court federal in ADEA the under claim a filing Before

.Commission Opportunity Employment Equal the with charge discrimination a File) 1

 State a in occurred practice unlawful alleged the if “agency state appropriate an with charge a File) 2

 or establishing and age of because employment in discrimination prohibiting law a had which

“.practice discriminatory such from relief seek or grant to authority State a authorizing

 some to entitled is plaintiff successful a addition In .26award pay back the to equal amount an in agesdam liquidated and pay back to entitled is person the ,ADEA the under suit a in prevails plaintiff a If

 to plaintiff a allowed have courts district some Although .27benefits fringe for reimbursement of form

 for allowed even have fewer and earnings future of loss and suffering and pain for compensated be

.28ADEA the under suffering and pain for agesdam compensatory allowed has issue the confronted has that court appellate no ,damages punitive

1973 of Act Rehabilitation The .C

 including ,prohibited is disability on based discrimination ,auspices its Under .funding federal ceivingre those and agencies Federal to applies ,ADA the to precursor the 1973, of Act Rehabilitation The

:that provides Act This .employment and ,access building public ,rehabilitation

 her of reason by solely ,shall States United the in disability a with individual qualified otherwise No

 to subjected be or ,of benefits the denied be ,in participation the from excluded be ,disability his or

 any under or assistance financial Federal receiving activity or program any under discrimination

.29Service Postal States United the by or agency Executive any by conducted activity or program

:prove must plaintiff a measure this under action of cause a assert to order In .ployeesem federal and assistance federal of recipients direct to restricted is law the of provision this Thus

.Act Rehabilitation the of meaning the within disability a with person a is individual the That) 1

.question in job the for qualified otherwise is he/s That) 2

.funds federal received that employer an by employment in against discriminated was he/s That) 3

.30disability her or his of because discrimination this suffered he/s That) 4

 into fallen largely has Act Rehabilitation the ,Act Disabilities with Americans the of passage the Since

 be to need supervisors ,Act this under claim a file occasion on still plaintiffs because However .disuse

.31existence its of aware

1990 of Act Disabilities with Americans The .D

 the passed Congress 1973, of Act Rehabilitation the of effects beneficial the further to attempt an In

:act this Under 1990. of Act Disabilities with Americans

 the of because disability a with individual qualified a against discriminate shall entity covered No

 or ,advancement ,hiring the ,procedures application job to regard in individual such of disability
Supervisors for Liability Direct

11 CHAPTER

221

 and ,conditions ,terms other and ,training job ,compensation employee ,employees of discharge

.32employment of privileges

.employees more or 15 of employers to applicable only is Act This

:individual an to respect with ,mean to” disability “a defines Act The

 such of 33activities life major more or one limits substantially that impairment mental or physical A) A(

.individual

.impairment an such of record A) B(

.34impairment an such having as regarded Being) C(

 the of functions essential the perform can ,35accommodation reasonable without or with ,who itydisabil a with individual an mean to” disability a with individual qualified “a defines further Act The

 term the that states Act the addition In .36desires or holds individual such that position employment

:include may” accommodation reasonable“

 with individuals by usable and to accessible readily employees by used facilities existing Making)A(

.disabilities

 ,position vacant a to reassignment ,schedule work modified or time-part ,restructuring Job)B(

 of modifications or adjustment appropriate ,devices or equipment of modification or acquisition

 and ,interpreters or readers qualified of provision the ,policies or materials training ,examinations

.37disabilities with individuals for accommodations similar other

 that accommodations make to required not is employer an that clear it makes Act that Nevertheless

.38hardship undue cause would

 general the in person average the that activity life major a perform to unable “means” limited tiallysubstan “,regulations) .C.O.E.E (s’Commission Opportunity Employment Equal the to According

 under duration or manner ,condition the to as restricted significantly “or” ,perform can population

 manner ,condition the to compared as activity life major particular a perform can individual an which

 major same the perform can population general the in person average the which under duration or

 of are that activities those to refers” activities major “that provides further .C.O.E.E The” .activity life

.life daily to importance central

 make not may employers Hence .employees as well as applicants job to equally applies ADA The

 of offer conditional a until applicants job of examinations physical conduct or inquiries medical

 if only employees of examinations conduct or inquiries medical make may and made is employment

 in include may employers Nevertheless .necessity business with consistent and related-job are they

.39posted position the of function job the perform to essential are functions physical what notices job

 of functions essential the perform to able be must) employee an as well as (applicant job a Moreover

.ADA the invoke to order in ,accommodation without or with ,job the

 of couple a in Court Supreme States United the ,courts lower and lawmakers some of standingunder the and ADA the implementing in .C.O.E.E the by issued regulations broad the Despite

 suffered who sisters two .,40Inc ,Lines Air United .v Sutton In .ADA the of scope the limited holdings

 a be to order in that policy a had airline the because company airline an sued myopia severe from

 this meet not did who ,sisters The .vision uncorrected 20/100 least at have to had person the ,pilot

 that contended sisters The .eyewear by corrected when vision perfect had nevertheless ,requirement

 .disability their for accommodation reasonable make to failed airline the and disability a had they

 without or with determined be to was disability whether consider to asked was Court Supreme The

.measures corrective to reference
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

11 CHAPTER

222

 and presently be must she or he ,ADA the under disabled be to person a for that stated Court The

 determination that; disabled was individual an whether determine not did device corrective a of usenon or use the that said Court the Moreover .limited substantially hypothetically or potentially not

 fact in were faced actually impairment an with individual an limitations the whether on depended

 of use the notwithstanding ,if disability a had one that stated Court the such As .limiting substantially

 in held Court The .activity life major a in limited substantially was individual that ,device corrective a

 disability a have not did they ,perfectly see to plaintiffs the allowed lens corrective since that case this

 disability a of reason by them against discriminate not did airline the ,such as and ADA the under

 least at have to had applicant the ,pilot a as employed be to order in that provided policy its when

.vision uncorrected 20/100

 for standard proper the consider to asked was Court Supreme States United the case another In

 Toyota In .labor manual performing in limited substantially was individual an whether assessing

 .syndrome tunnel carpal developed plant auto an in worker a ,41Williams .v .,Inc .,Ky .,Mfg Motor

 and reasons medical for much too work off been had she because terminated was employee The

 reasonable a with her provide to failed had employer her that claiming ,ADA the under suit filed she

.accommodation

 to had) 1 claimant a ,ADA the under disabled as qualify to order in that stated Court Supreme The

 the that demonstrate to needed) 2; impairment mental or physical a had she or he that prove initially

 activity life major the on limitation the that show further) 3 and; activity life major a limited impairment

 physical limited had plaintiff the although that noted Court Supreme the case this In .substantial was

 even and ,housework do ,hygiene as such ,needs personnel her of care take still could she ,mobility

 an ,tasks manual performing in limited substantially be to that held Court The .garden her in work

 doing from individual that restricted severely or prevented that impairment an have must individual

 that held Court the ,Moreover .lives daily s’people most to importance central of were that activities

 when that held Court the ,Finally .term-long or permanent be to had also impact s’impairment the

 whether be to had inquiry central the ,tasks manual performing of activity life major a addressing

 not and lives daily s’people most to central tasks of variety the perform to unable was claimant the

.job specific her with associated tasks the perform to unable was claimant the whether

 disability a constitutes what to as say final the not are holdings Court Supreme these Nevertheless

 Act Disabilities with Americans the enacted Congress 2008 In .ADA the under claim a asserting for

 s’Court Supreme the overturn to was Act this of purpose explicit The .42)ADAAA (Act Amendment

 .supra ,William .v .,Inc .,Ky .,Mfg Motor Toyota and ,supra .,Inc ,Lines Air United .v Sutton in decisions

 statutory the expanded further Act The .43activity life major a of definition the broadened Act This

 such having as regarded “term the regarding interpreted restrictively more Court the that language

 impairment an whether determining in standard s’Court the altered Act this Finally 44”.impairment an

 with effective became ADAAA the in enacted measures The .45activity life major a limits substantially

 for Thus 2009. 2, January after or on .C.O.E.E the with filed discrimination of charges to respect

 in establishes ADA the of interpretations and standards the ,date this to previous filed charges those

.apply still opinions Court Supreme cited-above the

1993 of Act Leave Medical and Family The .E

 to entitled is employee an that provides FMLA The .46workplace the of miles 75 within employed eesemploy more or 50 with employers all to applies 1993 of) FMLA (Act Leave Medical and Family The

:for period month 12 the during leave of weeks work unpaid 12

.child a of care foster or adoption for placement or birth The) 1

.parent or child ,spouse a of 47condition health serious The) 2

.48condition health serious own s’employee The) 3
Supervisors for Liability Direct

11 CHAPTER

223

 been have must employee the ,Act this under leave unpaid for eligible be to order in Nevertheless

.49period months 12 the during viceser of hours 1,250 least at provided have must and employer the for months 12 least at for working

 may employer the ,leave unpaid of weeks 12 employee the afford to has only employer the Although

 12 the of part any for leave sick or personal ,vacation paid her/his use first to employee the require

 birth the for basis reduced or intermittent an on leave take may employee an Moreover .50period week

 Act the although ,Furthermore .51arrangement this to agrees employer the if child a of placement or

 an ,child a of placement or birth for leave of case the in ,Also .52weeks 12 to limited is leave gregateag their ,employer same the by employed are spouses both if ,females and males to equally applies

53“.practicable is as notice such “or ,employer the to notice advance days 30 provide must employee

 of conditions and terms other and ,benefits ,pay in equivalent position a to or leave the before piedoccu position same the to either returned be must leave of period a completes who employee An

.55benefits care heath of continuation the to entitled are leave on employees Moreover .54employment

 equitable and damages money for employee the to liable is FMLA the violates who employer An

 examined have which courts most ,Finally .56violation willful a for damages liquidated as well as relief

 be can ,58managers and supervisors employer public including ,57supervisors that held have issue the

.59FMLA the under individually sued

 1978 of Act Discrimination Pregnancy The .F

 some was there s1970 the in Court Supreme States United the by rendered decisions several to Due

 under covered were pregnancy of basis the on discrimination of acts whether regarding question

 of forms such that clarified 1978 in Congress ,Accordingly 1964.60 of Act Rights Civil the to VII Title

 1978 of Act Discrimination Pregnancy The .Act Rights Civil the in included fact in were discrimination

:that provides

 or of because ,to limited not are but ,include” ,sex of basis the on “or” sex of because “terms The

 so not persons other as ,programs benefit fringe under benefits of receipt including ,purposes edrelat-employment all for same the treated be shall conditions medical related or ,childbirth ,nancypreg by affected women and; conditions medical related or ,childbirth ,pregnancy of basis the on

.61work to inability or ability their in similar but affected

 leave and hiring both treat to required are employers ,Act Discrimination Pregnancy the Under

 temporary a were it though as matters related all and ,childbirth ,pregnancy with dealing decisions

 complete cannot woman the because hire to refusal of allowance the is exception only The .disability

 is leave maternity Paid .issue related pregnancy a of because period employment probationary the

 this in followed be must it ,policy pay disability temporary a has agency the if ,however; required not

 on solely based occur may none as ,with dealt also are firing and ,leave forced ,Promotion .situation

 law the of provision this of violation A .62issues related-pregnancy with dealing or pregnant as status

.63employees pregnant of rights civil the to enceindiffer reckless or malice with acted employer the that shown is it if damages punitive in result may

 Personnel Service Military and Veterans for Rights Employment .G

 .veterans for rights employment-re and employment establishes law This .)USERRA (Act Rights mentemploy-Re and Employment Service Uniformed the is important most The .employment in inationdiscrim from personnel service military and veterans protect that laws significant several are There

:that states law This

 ,employment initial denied be not may service uniformed a in service performed has who one

 employer an by employment of benefit any or ,promotion ,employment in retention ,employment-re

.64services of performance that of basis the on
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 a from absent is who person a ,circumstances certain under except that states further law This

 military for order in ,Nevertheless .65benefits employment other and benefits and rights employmentre the to entitled be will services uniformed the in service of reason by employment of position

 previous all and absence the of length cumulative the ,law this under protected be to personnel

 uniformed the in service of reason by employer the with employment of position a from absences

.years five exceed not must services

 care to order in work from off time taking in protection additional have personnel military of Families

 the amended 2008 of Act Authorization Defense National The .military the in member family a for

 26 to up take to kin of next or ,parent ,daughter ,son ,spouse a permit to Act Leave Medical Family

 Guard National the of member a including ,Forces Armed the of member a for care to leave of weeks

.66illness or injury serious a for ,list retired disability temporary the on otherwise is or ,status tientoutpa in otherwise is ,therapy or ,recuperation ,treatment medical undergoing is who ,Reserves or

 Act This .contracts government of allocation the with deals Act Readjustment Era Veterans the Finally

 agency or department any by into entered more or $100,00 of amount the in contract any that states

 and employ to action affirmative take States United the with contracting party the that requiring sionprovi a contain must property nonpersonal and personal of procurement the for States United the of

.67veterans covered qualified employment in advance

196468 of Act Rights Civil The .H

 States United the of Congress the by passed ever legislation rights civil significant most the of One

 (a(-2e2000 § .C .S .U 42 1964, of Act Rights Civil the of VII Title 1964. of Act Rights Civil the was

 hire to refuse or fail to . . . employer an for practice employment unlawful an be shall it “that states

 his to respect with individual any against discriminate to otherwise or ,individual any discharge to or

,69race s’individual such of because ,employment of privileges or ,conditions ,terms ,compensation

 all to applies it ,firings illegal to limited not is VII Title .72origin national or ,sex ,71religion ,70color

 and compensation ,promotions ,assignments ,hiring including ,relationship employment of aspects

.environment work

 disparate individual :VII Title under discrimination of theories basic two recognized have courts The

 treated employer an that alleged is it where cases to applies treatment disparate Individual .)nationdiscrimi unintentional involving (impact adverse and) discrimination intentional involving (treatment

 In .73category protected a of member a is she or he because purpose on differently employee an

 proof Such .evidence circumstantial or indirectly proven be often must intent cases of types these

 but plaintiff the to situated similarly is who employee an” ,comparator “a of evidence involves typically

.plaintiff the with” compared “be can who issue at category protected the outside

 prima A .case facie prima a establish initially must treatment disparate for claim a bringing plaintiff A

:elements following the of showing a by established is case facie

.class protected a of member a is employee the That) 1

.job the of requirements the performed or sought job the for qualified Was) 2

.action employment adverse an to subjected Was) 3

 outside from person a by filled was or occurred harm the after open remained benefits or job The) 4

.74category protected the

 .discrimination of presumption rebuttable a creates it ,case facie prima a establishes plaintiff a Once

 discriminatory-non ,legitimate a state to employer the to shifts production of burden the point that At

 production of burden the ,evidence this produces employer the if However .75action job the for reason

 a ,false is employer the by given reason the that evidence some produce to plaintiff the to back shifts

.76discrimination illegal for” pretext “mere
Supervisors for Liability Direct

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 plaintiff the ,shifts production of burden the although ,case treatment disparate a in ,Nevertheless

 the that finder fact the to proving of burden the ,is that ,persuasion of burden the has ultimately

 of burden the when now ,However .action challenged the for reason real the was category protected

:either proving by step last this satisfy may plaintiff the ,false is eremploy the by given reason the that evidence some produce to plaintiff the to back shifts production

or discrimination for pretext a is but true not is explanation s’employer the That) 1

 motivating another was discrimination unlawful ,true is explanation s’employer the if even That) 2

.78(alternative motive-mixed the (77decision job the in factor

 pretextual was explanation s’employer the that show only need case treatment disparate vidualindi an in plaintiff a that held Court Supreme the .,79Inc ,Products Plumbing Sanderson .v Reaves In

:that stated Court The .judgment summary for motion a defeat to

 unlawfully employer the that conclude to fact of trier the permit may ,false is justification sertedas s’employer the that find to evidence sufficient with combined ,case facie prima s’plaintiff A

.discriminated

 employer an when employees by used be can ,discrimination” impact disparate “as known also ,tiondiscrimina of theory impact adverse the ,VII Title under discrimination of theory basic second The

 a in those affects disproportionately but face its on neutral is that practice employment an adopts

.categories protected the on based discriminate to intended employer the that denceevi no is there where discrimination prove to used often most is theory This .80category protected

 can This .case facie prima a of evidence offer must employee the ,First .cases discrimination tionalinten with that to similar manner a in shifts case theory impact adverse the in proof of burden The

 the Once .81issue at practice or policy the from resulting imbalance statistical a showing by done be

 two of one prove to employer the to shifts burden the ,case facie prima a articulated has plaintiff

 a has practice the that or ,impact adverse an in result fact in not does practice the that either :things

 “.question in employment the to relationship manifest“

 a called often is question in employment the and criteria the between” relationship manifest “The

 shown be generally can defense This” .defense necessity business “the hence” ,necessity business“

:ways three in

 job specific the on performed being work actual the to related issue at criteria the that evidence By) 1

.question in

or question in job the on required knowledge or skills measures criteria the that evidence By) 2

.82question in job the to essential trait psychological a identifies criteria the that evidence By) 3

 he or She .employee the to back shifts burden the” ,necessity business “a claims employer the When

 that exists” practice employment alternative “an that proof upon discrimination illegal prove still can

.effect discriminatory smaller a with degree same the to necessity business the fulfill would

 exhaust first must employee the ,court federal in VII Title under suit a file can employee an Before

 states in live who employees For .83C.O.E.E the with complaint a filing by remedies administrative all

 practices such from relief seek or grant to “authorized agency local or state appropriate no have that

 the with filed be must charge discrimination a” ,to respect with proceedings criminal institute to or

 with states in live do who employees those For .84of complained act the of days 180 within .C.O.E.E

 the with filed be must charge the) states deferred as known (,agency local or state appropriate an

 civil a of filing the by either ,resolved not is charge administrative the If .85days 300 within .C.O.E.E

 employee the then ,period time day 300 or 180 the within conciliation through or .C.O.E.E the by suit

 substantiation no been has there that finding a makes .C.O.E.E the if ,Also .court federal in suit file can
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86“.letter sue to right “a complainant the issue will agency the ,occurred has act discriminatory a that

.87court federal in lawsuit a file to days 90 has then employee the sent been has letter this Once

 case discrimination a proves successfully who plaintiff a to available remedies several are There

 or he money the plaintiff the gives which ,pay back to entitled is employee winning A .VII Title under

 wages lost includes pay Back .trial of time the to up action job adverse of result a as lost has she

 which ,pay front to entitled also is employee An .88benefits employment other of value the as well as

 for remedy substitute a as serves pay Front .future the into trial of date the from wages lost to refers

 plaintiff the usually although ,party either addition In .89unavailable is option that when reinstatement

 to entitled be may plaintiff successful a ,Moreover .costs court and fees s’attorney to entitled be may

 and pay back than other harms pecuniary-non and pecuniary for are which ,damages compensatory

 finding a upon employer private a from damages exemplary or punitive recover can plaintiff a thoughal ,Nevertheless .90anguish mental including ,decision employment illegal the by caused pay front

 indifference reckless with or malice with “conduct discriminatory the in engaged employer the that

 any against recovered be cannot damages punitive ,91plaintiff the of” rights protected-state the to

.defendant government

Harassment Sexual .I

 1964, of Act Rights Civil the of VII Title on based are harassment sexual alleging suits though Even

 of seriousness the of because and harassment sexual for filed suits of frequency the of because

 own it deserves subject this ,harassment sexual of determination a to attach would that liability the

 . . . employer an for practice employment unlawful an it makes ,)1) (a(-2e2000 § .C .S .U 42 .section

 sexual of types two recognize Courts The” ....sex s’individual such of because ,employment of legesprivi or ,conditions ,terms ,compensation his to respect with individual any against discriminate to

.harassment

 with someone or supervisor ,employer an of consists This .quo pro quid as to referred is form One

 for exchange in favors sexual demands who person staff subordinate a over control or authority

 .favor sexual a provide to refusing for action employment adverse taking or benefit employment an

.benefits in change significant a causing decision a or ,responsibilities different significantly with mentreassign ,promote to failing ,firing ,hiring as such ,status employment in change significant a tutesconsti action employment tangible A .action employment tangible a as to referred is this Sometimes

 occurs This .environment work hostile a as to referred is harassment sexual of form second The

 physical and ,remarks ,innuendoes sexual to employee an subjects supervisor or worker-co a when

 abusive an creates and employment s’employee the of conditions the alter to as offensive so acts

.92environment work

:93following the include harassment sexual constitute may that Activities

.Touching .a

.jokes” color Off “.b

.propositions unsolicited and ,unwelcome ,Unwanted .c

.language inappropriate of Use .d

.ridicule to up Holding .e

 can employees female where places in forth so and ,magazines ,books explicit sexually Leaving .f

.them find

.forth so and ,desks in ,lockers in ,boards bulletin on placed ,anonymous or signed either ,Notes .g

.advances sexual resisting or refusing after action adverse other or ,dismissal ,demotion ,Transfer .h
Supervisors for Liability Direct

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.actions or comments demeaning Sexually .i

.on so and ,contacts ,calls telephone” duty off “unsolicited and ,unwarranted ,Unwanted .j

 sexually all Not .activities harassing of examples ,exhaustive not ,illustrative are foregoing The

 must harassment sexual the ,unlawful be to order In .harassment sexual constitute acts oriented

 an create and employment s’victim the of conditions the alter to pervasive or severe sufficiently be“

 and severity in vary that harassment sexual of levels are there Thus 94”.environment working abusive

 general The .assault sexual as serious as not is joke” color off “an telling ,example For .consequence

 whereas ,liability to lead automatically not do harassment sexual of types serious less that is rule

 .do acts serious more

 “person reasonable a “that one be must environment work the claim actionable an assert to order In

 has Court Supreme the Moreover .hostile as environment the perceived subjectively have must tiffplain the ,additionally ,that and ,95circumstances the all at looking ,hostile be to found have would

 be will this ,quit to forced is employee the that hostile so becomes environment work the if that held

 ,conduct the of target direct the not is plaintiff a if even ,Finally .96discharged been actually had ualindivid the if as damages for sue can employment the and discharge” constructive “a as considered

 work hostile a created harassed sexually being others observing that claim still may employee an

.97plaintiff the for environment

 pro quid is harassment sexual the whether on depending differs employer the for exposure Liability

 a if available defense affirmative no is There .environment work hostile a constitutes or nature in quo

 employer The .quo pro quid was harassment sexual the ,is that ,occurred has detriment job tangible

 can employer the Nevertheless .subordinate a against supervisor a of actions the for liable strictly is

 an ,so do to order In .harassment sexual of form quo pro quid a for incurred liability the minimize still

 must harassment sexual alleged of aware becoming otherwise or notice receiving upon ,employer

 determine to complaints harassment sexual of investigation thorough a conducting entails” action alremedi Prompt “.98harassment sexual the end to calculated reasonably action remedial prompt “take

.harassment sexual any end to designed remedies appropriate fashioning and validity their

:elements necessary two comprises defense The .fensede affirmative an have does employer the ,environment work hostile a alleging suits for However

 adequate an with policy harassment-anti an of existence the proving by generally ,behavior ingharass sexually any promptly correct and prevent to care reasonable exercised employer the that) a(

:and ,procedure complaint

 corrective or preventive any of advantage take to failed unreasonably employee plaintiff the that) b(

.99otherwise harm avoid to or employer the by provided opportunities

:to needs employer the environment work hostile a having for liability avoid to order in Thus

.harassment sexual including ,discrimination sexual against policy written a Have■ 

.organization the within staff all to policy the Disseminate■ 

.complaints such handling for process a Have■ 

 a making when supervisors harassing alleged the pass-by can party aggrieved an that Ensure■ 

.complaint

.allegation the of investigation immediate and thorough a Undertake■ 

.100possible as expeditiously as actions appropriate take and conclusion a to Come■ 

 knew it if environment work hostile a of creation the to respect with negligent is employer an Hence

.101it stop to failed and conduct the about known have should or
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1991 of Act Rights Civil The .J

 Congress ,decisions these to response in Mainly 1964.102 of Act Rights Civil the of parts of cationappli the restricted that decisions Court Supreme States United of series a was there s1980 the In

:Act 1991 The .decisions these overturn to effectively 1991 in Act Rights Civil the amended

.contracts enforcing and making in discrimination race private against protections Broadened■ 

.discrimination disability and sex ,religious for damages punitive and compensatory Added■ 

.sought were damages punitive and compensatory where trials jury Provided■ 

 how specified and VII Title under discrimination proving of 103theory impact disparate the Codified■ 

.forces work of composition racial the affected factors multiple where applied be to was it

 a when 104theory treatment disparate a on VII Title under established be to liability Permitted■ 

.decisions employment in role any played factor prohibited

.plaintiffs successful to fees witness expert of award the Authorized■ 

 the under” letters sue to right “issue to Commission Opportunity Employment Equal the Required■ 

.105Act Employment in Discrimination Age

Examinations Polygraph .K

 in engaged employers private prohibits 1988106 of Act Protection Polygraph Employee the Although

 prospective or employee any requiring from commerce for goods of production the in or commerce

 any ,States United the of employees to apply not does Act this ,test detector lie a take to employee

 .employees government on examinations polygraph of use the restrict or prevent would that sionsprovi legal have may States ,Nevertheless .subdivision political any or ,government local or state

 Mental and Health Mental of Department Texas .v Union Employees State Texas in ,example For

 Mental of Department Texas the that policy the down struck Court Supreme Texas the ,107Retardation

 too was it because grounds privacy on facility a at injured was patient a whenever examination graphpoly a undergo to facility residential a of staff all requiring issued had Retardation Mental and Health

.overreaching and overbroad

Testing Drug .L

 of propriety the examine to upon called was Court Supreme States United the s1980 late the In

,108Association’ Executives Labor Railway .v Skinner In .employees public on tests drug conducting

 conduct to railroads requiring regulations promulgated) FRA (Administration Railroad Federal the

 regulations These .incidents or accidents major certain following employees on tests urine and blood

 or caused had employees railroad by abuse drug and alcohol that belief the upon predicated were

 enjoin to suit brought union labor railroad A .accidents train significant of number a to contributed

.regulations these

 in railroads private by required tests urine and breath that recognized Court Supreme the case this In

 upon intruded urine of testing and collection the that noted Court Supreme the ,Moreover .stitutionCon States United the to Amendment Fourth the implicated regulation government a on reliance

 Supreme the ,Nevertheless .reasonable as recognized long had society that privacy of expectations

 and drug the to applicable was Amendment Fourth the though even that observed further Court

 into inquiry the of beginning the only was this ,regulations governmental by prescribed testing alcohol

.109intrusions such governing standards the

 ,seizures and searches all proscribe not did Amendment Fourth the that stated Court Supreme The

 on depends “,course of ,reasonable was what Moreover .110unreasonable were that those only but
Supervisors for Liability Direct

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 seizure of search the of nature the and seizure or search the surrounding circumstances the of all

 the on intrusion its balancing by judged is “practice particular a of permissibility the ,Thus 111”.itself

112“.interests governmental legitimate of promotion its against interests Amendment Fourth s’individual

 operation its or ,industries regulated or probationers of supervision its like ,safety ensure to ployeesem railroad of conduct the regulating in interest s’Government the that stated Court the ,addition In

 enforcement law normal beyond’ needs special ‘presents “,prison or ,school ,office government a of

“.requirements cause probable and warrant usual the from departures justify may that

 stated Court The .FRA the by promulgated regulations the upheld Court Supreme the case this In

 and minimal were search the by implicated interests privacy the where ,circumstances limited in ,that

 by jeopardy in placed be would intrusion the by furthered interest governmental important an where

 such of absence the despite reasonable be could search a ,suspicion individualized of requirement a

.suspicion

 public of testing the with dealing case another examined Court Supreme the term same this During

 United the ,113Raab Von .v Union Employees Treasury National In .consumption drug for employees

 seizure and interdiction the mission enforcement primary its as had which ,Service Customs States

 involvement direct a having positions to promotion or transfer seeking employees Service of tests sisurinaly requiring program screening-drug a implemented ,country the into smuggled drugs illegal of

 An .material’ classified “handle to or firearms carry to incumbent the requiring or interdiction drug in

 Fourth the violated program testing drug this that alleging ,court federal in suit filed union’ employees

.Amendment

 ,needs governmental special served intrusion Amendment Fourth a where that noted Court The

 privacy s’individual the balance to necessary was it ,enforcement law for need normal the beyond

 require to impractical was it whether determine to interests s’Government the against expectations

 stated further Court The .context particular the in suspicion individualized of level some or warrant a

 even expectations privacy diminish might employment public of forms certain that plain was it that

 national and safety extraordinary the of light in ,Hence .searches personal such to respect with

 carrying the require that positions to users drug of promotion the attend would that hazards security

 of policy s’Service the that held Court the ,substances controlled of interdiction the or firearms of

 employees of categories certain to program this of application the that held further Court the ,lessNeverthe .unreasonable deemed be not could promotions such seeking from users drug deterring

 had Government the whether to as determination a for case the remanded and unjustified be might

 of condition a as tested be to employees of categories other these require to interest compelling a

.114promotion

 testing of types three are there generally ,employees public testing drug of propriety the examining In

 based testing) 2; promoted or hired initially being of condition a as testing) 1 :considered be must that

 .jurisdictions many in litigation in still are testing of types these involving issues and law of area atilevol very a is this that noted be should It .testing drug random) 3 and; use drug of suspicion a upon

 and circumstances certain under testing drug prescribing laws state numerous are there ,Moreover

 can chapter this while ,Thus .115circumstances other under testing drug proscribing laws state some

 ,workplace the in testing drug conducting of propriety the regarding directions general some offer

.topic this regarding answer precise a for counsel local consult must one

 allowed has statute federal a 1988 since that is testing drug regarding definitively said be can What

 with contracts into entering contractors federal required has and employees federal of testing drug

 will they that agree to grantees federal all and more or $100,000 of amount an in agencies federal a

 led has ,turn in ,This .116grant or contract the receiving of condition a as workplaces free-drug provide

 a is it ,Thus .polices workplace free-drug own their implement to employers state and private many

.test drug a to submit to required be to ,hired initially being upon ,person a for practice common
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

11 CHAPTER

230

 illegal an consuming is employee an that suspicion reasonable a has employer an if ,addition In

 test drug a to submit to person that require can employer the then job the on alcohol using is or drug

 ,Nevertheless 1973.117 of Act Rehabilitation the or Act Disabilities with Americans the violating without

.manner unfair or arbitrary an in teredadminis been having as considered be may testing such also but ,Amendment Fourth the and cypriva concerning issues entails only not testing Such .problematic more much is testing drug random

 in employees ,Obviously .doing so in interest compelling a show can entity governmental the videdpro ,permissible is employees public of testing drug random that indicate Raab Von .v Union ployeesEm Treasury National and Association’ Executives Labor Railway .v Skinner both in law case The

 most can entity or agency governmental the of integrity the compromise could that positions in eesemploy ,Also .tests drug random undergo to required be can clearance security a requiring positions

 supervise who officers parole or probation ,Thus .testing drug random to submit to required be likely

 in ,However .tests drug random administered be probably can drugs in dealing for convicted persons

 or probationers see not do who people or staff clerical with case the be not would this ,likelihood all

 written be to needs there ,valid as upheld policy testing drug any have to order in ,Finally .parolees

.manual personnel s’employee the in included is that policy out thought-well and

2008 of Act Nondiscrimination Information Genetic .M

 Act Nondiscrimination Information Genetic the law into signed Bush .W George President 2008 In

 .employee an of promotion or ,placement ,firing ,hiring including ,decision personnel of type any ingmak when information genetic s’employee an use to employers for illegal it makes law This .)GINA(

 but information genetic of basis the on employment in discrimination prohibit GINA does only Not

 In .employee an from information genetic acquiring or requesting from employer an prohibits also it

 medical separate a in maintained be must possessed be may that information genetic any ,addition

 disclosed be only can information genetic ,Moreover .records medical confidential as treated and file

$300,000.118 to up of fines in result may Act this of violations ,Finally .circumstances limited under

LAW STATE BY GIVEN EMPLOYEES OF RIGHTS .III

 the by enforced be ,therefore ,can and laws state into enacted been also have laws federal Many

 then can law the ,happens this Where .Commission Rights Human state a creating by usually ,states

 choose may government federal The .states the and government federal the by both enforced be

 federal enacting-re to addition In .incentive financial a on based—state the to enforcement leave to

 example An .employees to remedies and rights giving own their of laws pass also may states ,laws

 an in malfeasance exposes who employee the of dismissal proscribe that statutes whistleblower is

.rules service civil by covered are employees public whether to as vary rules State .pervisorssu by respected be must that rights employees giving laws service civil have states Some .agency

 AGENCY BY GIVEN EMPLOYEES OF RIGHTS .IV

POLICIES

 state in enforced be may rights These .agency the on binding are policies Those .laws and stitutionCon States United the by given those beyond employees to rights give sometimes policies Agency

 subject the be cannot they ,hence; rights constitutional of level the to rise not do policies These .ersemploy own their affecting policies agency drafting when careful be therefore must Agencies .courts

.law tort state under action legal of source a is which 1983, § under lawsuit a of
Supervisors for Liability Direct

11 CHAPTER

231

 COLLECTIVE BY GIVEN EMPLOYEES OF RIGHTS .V

AGREEMENTS BARGAINING

 are provisions These .employment of aspects various cover agreements bargaining Collective

 the by given are than employees to rights more give usually and conditions working about specific

 violations for Penalties .respected be must and agency the bind rights These .laws and Constitution

 other; agreements bargaining collective by governed are conditions working and unionized are ersemploy parole/probation Some .itself agreement bargaining collective the in for provided usually are

.not are employers

SUMMARY

 to do they what for liable are supervisors ,do subordinates their what for liability civil to addition In

 by given are that subordinates their of rights the with familiar be must Supervisors .subordinates their

 These .agreements bargaining collective and ,policy agency ,laws state and federal ,Constitution the

 .litigation of source rich a become have and state to state from lot a vary rights

NOTES

.(1967) 493 .S.U 365 ,Jersey New .v Garrity 1.

.(1968) 563 .S.U 391 ,Education of Board .v Pickering See 2.

.(1980 24, January .Div .App .Y.N (2520 .W.L.S.U 48 ,Onofre .v York New See 3.

(1968) 563 .S .U 391 4.

.(1987) 709 .S.U 480 ,Ortega .v Connor’O 5.

 an whether concerning issue the addressed never has Court Supreme States United the Although 6.

 questioning to prior employee an to warning Garrity a administer to duty affirmative an has employer

 a to pursuant individual the questioning to prior or matter related employment an about individual the

 is practice better the ,matter this regarding split are courts circuit the although and matter disciplinary

 chance reasonable a is there which in situations in warning Garrity the with employee the provide to

 See .action criminal subsequent a in used be could questioning the from elicited information the

 and Housing of Department .v Weston and) 2002 .Cir th7 (987 d3 .F 286 .,Dist Park Lisle .v Atwell

 an has employer government a that holding) (1983 .Cir .Fed (943 nd2 .Fed 724 ,Development Urban

 680 ,McCorkle .v Gulden and) 1985 .Cir th11 (1492 nd2 .F 777 ,Milledgeville of City .v Hester and) tyimmuni Garrity of consequences and application the both of employee an apprise to duty affirmative

 of employee the advise to employer the of duty no is there that holding) (1982 .Cir th5 (1070 nd2 .F

 Department States United .v Sher ,also see); warning Garrity a of consequences and application the

.(2007 .Cir st1 (489 rd3 .F 488 ,Affairs Veterans of

.(1967) 493 .S .U 385 7.

 employee questioned the which in ,rule Garrity the by followed usually is warning Garrity The 8.

 the answering only is he/s that ,question the answering to objects person the that known it makes

 given statement any that and ,job her/his retaining person the of condition a is it because question

.proceeding criminal later a in used be cannot and purposes employment for considered be only can

.(1974) 379 d.2W.N 215 ,Board Personnel State .v Safransky 9.

.(1973 .,Md .D (843 .Supp .F 359 ,Education of Board .v Acanfora 10.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

11 CHAPTER

232

.(1969 .,Cir .C.D (1161 d.2F 417 ,Macy .v Norton 11.

.(1979 .Pa .D.E (449 .Supp .F 470 ,Philadelphia of City .v Shuman 12.

 ,See .officers public certain of activities political the restricting laws state and federal are There 13.

78. at 31, note supra ,BRANCATO ,general in

.(1987) 266 .Supp .F 675 14.

.(1987) 1333 .Supp .F 675 ,Snow .v MacKenzie 15.

 ,Justice of Institute National ,Justice of Department .S.U ,Action in Research (Overview criminationDis Employment :Justice Criminal and Rights Civil ,Rubin .P by article an on relies section This 16.

.(154278 NCJ 1995, June

.(1976) 206 § ,Code .S.U 29 17.

 ,also see); 2003 .Cir th7 (693 d3 .F 338 ,Trustees of Board University Indiana .v Cullen See 18.

.(2008 .Cir th7 (627 d3 .F 516 .,Co Cup Solo .v Warren

.(2003 .Cir th8 (751 d3 .F 341 .,Mo ,Independence of City .v Ottman 19.

 and enforcement the for responsible now is Commission Opportunity Employment Equal The 20.

.Act Pay Equal the of administration

 20 than fewer with employers to apply not does Act Employment in Discrimination Age The 21.

.(1990 .Cir th6 (360 d2 .F 920 ,Tp Monclova .v .C.O.E.E See .employees

.(1976) e2000 § ,Code .S.U 42 22.

.(2000) 99-536 .No ,Products Plumbing Sanderson .v Reeves 23.

.(1996) 308 .S .U 517 .,Corp Caterers Coin Consolidated .v Conner’O 24.

.(2008 .Cir th8 (1074 d3 .F 528 ,District School County Gage .v Wingate 25.

.(b (626 § ,Code .S .U 29 26.

.(2000 .Cir th10 (1237 d3 F 210 .,Inc ,Stores Safeway .v Greene 27.

 3.124. Section 1. .Vol .ed nd2 ,Actions Rights Civil and Discrimination Employment on Manual See 28.

.(2010) West/Reuters Thomson .MN ,Eagan .Richey .R Charles Honorable the By

794. § ,Code .S.U 29 29.

.(2002 .Cir nd2 (309 d3 .F 320 ,Rumsfield .v Kinsella 30.

 .Cir th10 (1113 d3 .F 500 ,Potter .v Jarvis See .Act Rehabilitation the and Act Disabilities with icansAmer the by created obligations and rights of analysis the in difference significant no is There 31.

.(2007

.(a (12122 § .Code .S .U 42 32.

 ,tasks manual performing ,oneself for caring ,to limited not are but ,include activities life Major 33.

 ,learning ,breathing ,speaking ,bending ,lifting ,standing ,walking ,sleeping ,eating ,hearing ,seeing

.(A) (2 (12102 §Code .S .U 42 .working and ,communicating ,thinking ,concentrating ,reading

 that impairment an have not does employee a if even that states) 1 (12102 § ,Code .S .U 42 34.

 a having” as regarded “be still can individual the ,activities life major more or one limits substantially

:person the if disability

;limiting stantiallysub as perceives employer the which but limiting substantially not is that impairment an has) 1
Supervisors for Liability Direct

11 CHAPTER

233

or ,others of attitudes the of because only limiting substantially is that impairment an has) 2

 limiting substantially a having as employer the by perceived is but impairment no has) 3

.impairment

 environment work the in change any “is accommodation an that states) o (1630.2 § .R .F .C 29 35.

 equal enjoy to disability a with individual an enables that done customarily are things way the in or

:categories three of one into fall generally accommodations Reasonable” .opportunities employment

;process application the in opportunity equal ensure to required are that accommodations) 1

or; desired or held position the of functions job tialessen the perform to disabilities with employees s’employer the enable that accommodations) 2

 and benefits enjoy to disabilities with employees s’employer the enable that accommodations) 3

.disabilities without employees by enjoyed are as employment of privileges

.(8) 12111 § Code .S .U 42 36.

.(9) 12111 § Code .S .U 42 37.

 a in employee an place to required not are employers that states) 10 (12111 § Code .S .U 42 38.

 current of basis the on advisedly made be should threat a pose would employee an that terminationde The .employees other of health or safety to threat direct a pose would she or he where position

.information medical

 when ADA the of afoul runs employer an; criteria physical establish to employers allows ADA The 39.

 it that ,imaged or real ,impairment mental or physical a on based decision employment an makes it

 .S .U 527 .,Inc ,Lines Air United .v Sutton See .activity life major a limiting substantially as regarded

.(1999) 471

.(1999) 471 .S .U 527 40.

 see); 1999 (516 .S .U 527 .,Inc ,Services Parcel United .v Murphy ,also see); 2002 (184 .S .U 534 41.

.(1999) 555 .S .U 527 ,Kirkingburg .v .,Inc s’Albertson ,further

.(2008) 110-325 .No .L .Pub 42.

 physical a of [purposes for that provide to activity life major of definition the amended ADAAA The 43.

 activities life major] activities life major more or one limits substantially that impairment mental or

 ,eating ,hearing ,seeing ,tasks manual performing ,oneself for caring ,to limited not are but ,include

 ,concentrating ,reading ,learning ,breathing ,speaking ,bending ,lifting ,standing ,walking ,sleeping

 major of definition the to amendment further a added Act The .working and ,communicating ,thinking

 limits substantially that impairment mental or physical a of [purposes for that provide to activity life

 bodily major a of operation the includes also activity life major a] activities life major more or one

 ,digestive ,growth cell normal ,system immune the of functions ,to limited not but including ,function

.functions reproductive and endocrine ,circulatory ,respiratory ,brain ,neurological ,bladder ,bowel

 an such having as regarded being ‘of requirement the meets individual an ADAAA the Under 44.

 prohibited action an to subjected been has she or he that establishes individual the if’ impairment

 the not or whether impairment mental or physical perceived or actual an of because ADA the under

 that specifies ADAAA the Nevertheless .activity life major a limit to perceived is or limits impairment

 transitory are that impairments to apply not shall disability of definition the of prong’ as regarded ‘the

 expected or actual an with impairment an is impairment transitory a that states Act The .minor and

.active when activity life major a limit substantially would it if disability a is sionremis in or episodic is that impairment an that states Act the Finally .less or months six of duration
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

11 CHAPTER

234

 impairment an whether of determination a ,ADAAA the by established standard the Under 45.

 of effects ameliorative the to regard without made be shall activity life major a limits substantially

:as such measures mitigating

 not do which (devices vision-low ,appliances or ,equipment ,supplies medical ,medication) I(

 mobility ,devices and limbs including prosthetics ,)lenses contact or eyeglasses ordinary include

;supplies and equipment therapy oxygen or ,devices

;technology assistive of use) II(

or; services or aids auxiliary or accommodations reasonable) III(

.modifications neurological adaptive or behavioral learned) IV(

 or eyeglasses ordinary of measures mitigating of effects ameliorative the ,ADAAA the Under :Note

 major a limits substantially impairment an whether determining in considered be shall lenses contact

.activity life

 employees 50 than fewer are there if apply not does Act the ,sector public the in employers For 46.

.site employment the of radius mile 75 a within

 (2) or facility medical residential or ,hospice ,hospital a in care inpatient) 1 (either involves that ditioncon mental or physical or ,impairment ,injury ,illness an as defined is condition health serious A 47.

.(11) 2611 § Code .S .U 29 See .provider care health a by treatment continuing

.(1) (a (2612 § Code .S.U 29 48.

.(2000) (a) (2 (2611 § Code .S .U 29 49.

.(2005) 825.207 § .R .F .C 29 50.

.(2000) (b (2612 § ,Code .S .U 29 51.

.(2005) 825.202 § .R .F .C 29 52.

.(2000) (e (2612 § ,Code .S .U 29 53.

.(2005) 825.214 § .R .F .C 29 54.

/.com.fmlaonline://http 55.

.(A) (1) (a (2617 § ,Code .S .U 29 56.

 .v Knussman ,also see); 1997 .Mich .D .E (1075 .Supp .F 984 .,Inc ,Systems .S .T .v Stubl See 57.

.(1996 .Md .D (659 .Supp .F 935 ,Maryland of State

 .F 287 ,Bratch .v Darby ,also see); 2002 .Va .W .D .S (654 .Supp .F 179 ,Simmons .v Cantley See 58.

 ,Actions Rights Civil and Discrimination Employment on Manual ,further see); 2002 .Cir th8 (673 d3

/Reuters Thomson .MN ,Eagan .Richey .R Charles Honorable the By 9.36. Section 1. .Vol .ed nd2

.(2010) West

 Court Circuit Sixth the which in ,)2003 .Cir th6 (811 d3 .F 343 ,Chapman .v Michell ,however ,See 59.

 the that reveals structure and text s’FMLA the of examination independent “an that held Appeals of

“.employees agency public on liability individual impose not does statute

.(1976) 125 .S .U 429 ,Gilbert .v .Co Electric General and) 1974 (484 .S .U 417 ,Aiello .v Geduldig 60.

.(k(-e2000 § ,Code .S .U 42 61.

.(1976) k2000 § ,Code .S.U 42 62.

.(2000 – .Cir th11 (600 d3 .F 213 .,Inc ,O & W .v .C.O.E.E 63.
Supervisors for Liability Direct

11 CHAPTER

235

4334. through 4301 §§ ,Code .S .U 38 64.

4312. § ,Code .S .U 38 65.

2601. § ,Code .S .U 29 66.

4212. § ,Code .S.U 38 67.

 individual other or supervisors sue to used be cannot VII Title that held have courts circuit The 68.

 .Cir th5 (649 d3 .F 21 .,Co Star Lone .v Grant See” .employers “not are they because employees

EEOC States United ,)1998 .Cir th4 (177 d3 .F 159 ,Service Food Southern .v Lissau ,also see); 1994

 55 ,Technology of .Inst Basic .v Lenhardt ,)1995 .Cir th7 (1276 d3 .F 55 ,Investigations .Sec AIC .v

 if ,similar are which employment in laws discrimination-anti state have ,all not if ,states most thelessNever .)1999 .Cir th10 (736 d3 .F 172 ,Village Prairie of City .v Butler and ,)1995 .Cir th8 (377 d3 .F

 state on premised be might liability individual Since 1964. of Act Rights Civil federal the ,mirror not

 under arising liability of theories understand to supervisor a for wise be would it ,laws discriminationanti federal violated supervisor a if repercussion employment be might there because and statutes

.VII Title

.race defining in factors as nationdiscrimi race” reverse “and” ,plus-race “or subgroup ,association ,perception ,culture ,illnesses linkedrace ,characteristics physical ,ancestry includes ,II15- § Manual Compliance s’.C.O.E.E The 69.

 – meaning understood commonly its have to” color “read have .C.O.E.E the and Courts The 70.

 is person a when occurs discrimination color ,Thus .tone or shade skin or ,complexion ,pigmentation

 .person the of characteristic color other or ,darkness ,lightness the on based against discriminated

 discrimination color ,Moreover .synonymous not are they ,overlap clearly color and race though Even

 or race same the of persons between or ,ethnicities or races different of persons between occur can

.ethnicity

.III15- § ,Manual Compliance .C.O.E.E See

 ,belief as well as ,practice and observance religious of aspects all includes” religion “term The 71.

 or s’employee an to accommodate reasonably to unable is he that demonstrates employer an unless

 of conduct the on hardship undue without practice or observance religious s’employee prospective

.(j (e2000 § ,Code .S .U 42 see; business s’employer the

 the ,to limited not but ,including as broadly discrimination origin national defines .C.O.E.E The 72.

 place ,s’ancestor her or his or ,s’individual an of because opportunity employment equal of denial

 national a of characteristics linguistic or cultural ,physical the has individual an because or; origin of

1606.1. § .R .F .C 29 Title ,see; group origin

.(1981) 248 .S .U 450 ,Burdine .v Affairs Community of Department Texas 73.

.(1973) 792 .S .U 411 ,Green .v .Corp Douglas McDonell 74.

.supra ,Burdine .v Affairs Community of Department Texas 75.

.supra ,Green .v .Corp Douglas McDonell 76.

 job a Generally .motives illegal and legal of mixture a is there where one is case motive mixed A 77.

.decision illegal an is motives mixed from resulting decision

.(2003) 90 .S .U 539 ,Costa .v .Inc ,Palace Desert 78.

.(2000) 133 .S .U 503 79.

.(1971) 424 .S .U 401 .,Co Power Duke .v Griggs 80.
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

11 Chapter

236

 the if occurs impact disparate a :regard this in test” % 80 or fifths-four “a apply often Courts 81.

 the of % 80 than less of rate a at selected is) category protected the within those (group excluded

 .547d2 .F 841 .,Corp Oil Gulf .v Bernard See .category protected the outside those for rate selection

.(1988 .Cir th5(

.Procedures Selection Employment on Guidelines Uniform .C.O.E.E See 82.

.(2002 .Cir th5 (376 d3 .F 296 .,Inc ,Million A Books .v Taylor 83.

.(e (-5e2000 § ,Code .S .U 42 84.

1601.13. § .R .F .C 29 85.

.(2005 .Cir st1 (556 d3 .F 404 ,Rumsfeld .v Jorge 86.

.(1) (f (-5e2000 § ,Code .S .U 42 87.

 cannot governments local and state against and employers private against awards pay Back 88.

 ,see; .C.O.E.E the with filed was charge initial the date the before years two than more back extend

.(g(-5e2000 § ,Code .S .U 42

.(1080 .Cir th10 (945 d2 .F 624 .,Inc ,Stockade Sirloin .v Fitzgerald 89.

 of number the on based capped are) pay front and pay back excluding (damages s’plaintiff A 90.

:follows as ,employer-defendant the by employed people

;$50,000 - employees 15-100) 1

;$100,000 - employees 101-200) 2

 and; $200,000 - employees 201-500) 3

$300,000. - employees more or 501) 4

 § ,Code .S .U 42 ,also see); 1998 .Cir th8 (620 d3 .F 157 ,District School County Logan .v Kramer

.(3) (b (a1981

.(1999) 526 .S .U 527 ,Association Dental American .v Kolstad 91.

:that states Commission Opportunity Employment Equal the by issued guidelines The 92.

 a of conduct physical or verbal other and ,favors sexual for requests ,advances sexual Unwelcome

 either made is conduct such to submission) 1 (when harassment sexual constitute nature sexual

 such affecting decisions employment for basis the as used is individual an by conduct such of tionrejec or to submission) 2 (,employment s’individual an of condition or term a implicitly or explicitly

.environment working offensive or ,hostile ,intimidating an creating or performance work s’vidualindi an with interfering unreasonably of effect or purpose the has conduct such) 3 (or ,individual

 binding constitute not do they though even ,guidance of source a as) EEOC (Commission mentEmploy Opportunity Equal States United the of guidelines the to look courts state and federal Both

.(1986) 57 .S .U 477 ,Vinson .v FSB ,Bank Savings Meritor See .precedent

49. .p 1982, ,Manual Defense Legal ,Enforcement Law Effective for Americans See 93.

 ,discrimination sex was harassment sexual” environment hostile “that recognized Court premeSu States United the case this In .)1986 (57 .S .U 477 ,Vinson .v FSB ,Bank Savings Meritor 94.

 of .Dept Texas .v Cuesta In .injury financial direct a cause not did it if even ,VII Title under actionable

 the affects that harassment that held court district federal a) 1991 (451 .Supp .F 805 ,Justice Criminal

 a that prove not could defendant the although ,enough is employee the of wellbeing psychological

.affected was work her of condition or term
Supervisors for Liability Direct

11 CHAPTER

237

 Court Supreme States United the) 1989 (75 .S .U 523 ,Service Offshore Sundowner .v Oncale In 95.

 actionable is ,environment work hostile a of creation the including ,harassment sex-same that held

“.sex of because “occurs it if VII Title under

.(2004) 129 .S .U 542 ,Suders .v Police State Pennsylvania 96.

.C .D ,Washington ,Books BNA .Chief-inEditor ,Weirich Geoffrey .C) 2007 (.Ed th4 .Law Discrimination Employment .c.5.B.II19 .Ch 97.

.(1983 .Cir th4 (251 d2 .F 709 ,Dole .v Katz 98.

.(1998) 742 .S .U 534 ,Ellerth .v .Inc ,Industries Burlington 99.

.(1998) 775 .S .U 524 ,Raton Boca of City .v Faragher 100.

.supra ,Ellerth .v .Inc ,Industries Burlington 101.

 Court Supreme States United the ,)1989 (164 .S .U 491 ,Union Credit McLean .v Patterson In 102.

 enforce to right the and contracts make to right the protected only 1981 § ,Code .S .U 42 that held

 ,(1989) 642 .S .U 490 ,Atonio .v .Co Packing Cove Wards in; harassment racial cover not did it; them

facie prima a out make not could plaintiff a ,case impact disparate a in that held Court Supreme the

 490 ,Hopkins .v Waterhouse Price in; practices employment in disparity statistical showing by case

 proving by liability VII Title escape could employer an that held Court Supreme the) 1989 (228 .S .U

 in even action employment adverse the caused have would VII Title by prohibited not motives that

482 .,Inc ,Gibbons .T .J .v .Co Fitting Crawford in and; motive prohibited VII Title a of absence the

 of part a as or costs of part a as recoverable not were fees witness expert that held Court premeSu the) 1991 (83 .S.U 499 ,Casey .v .,Inc ,Hospital University Virginia West and) 1987 (437 .S .U

1964. of Act Rights Civil the under fees s’attorney

 showing without even VII Title under recover to plaintiff a permits theory impact disparate The 103.

.discriminate to intended employer the that

.discrimination intentional for VII Title under liability imposes theory treatment disparate The 104.

 ,Publications Law Wiley .Jr ,Perritt .H Henry by Report Special – 1991 of Act Rights Civil See 105.

1.1. Section 1992 .Y .N ,York New .Inc ,Sons & Wiley John

 .seq et 2001 § ,Code .S .U 29 106.

.(1987 .Tex (203 d2 .W .S 746 107.

.(1989) 602 .S .U 489 108.

.(1987) 709 .S .U 480 ,Ortega .v Connor’O See 109.

.(1985) 675 .S .U 470 ,Sharpe .v States United 110.

.(1985) 531 .S .U 473 ,Hernandez de Montoya .v States United 111.

.(1979) 648 .S .U 440 ,Prouse .v Delaware 112.

.(1989) 656 .S .U 489 113.

 of testing the to employment of area the from moved has testing drug of constitutionality The 114.

 the ,authority supporting as cited been have decisions Raab Von .v Union Employees Treasury alNation and Association’ Executives Labor Railway .v Skinner the While .schools public in students

 the of” needs special “the of basis the on students of testing the upheld generally has Court Supreme

 in district school rural small a) 1995 (646, .S .U 515 ,Acton .v J47 District School Vernonia In .students

 policy testing drug random a implemented problems drug serious experiencing been had that Oregon
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

11 CHAPTER

238

 ,enforcement law for need normal the beyond ,needs special when “constitutional be could cause bleproba by unsupported search a that noted Court Supreme States United The .athletes student all for

 that found Court the Moreover” .impracticable requirement cause probable and warrant the make

 Court Supreme the although Nevertheless .context school public the in existed” needs special “such

 upheld and athletes student of tests drug random conduct to need governmental compelling a found

 drug suspicionless that assumption the against cautioned Court the ,policy s’district school the

 s’government the of furtherance in undertaken was policy the that was case this in element nificantsig most the that stated Court The .contexts other in muster constitutional pass readily would testing

.care its to entrusted children of tutor and guardian as ,system school public a under ,responsibilities

 536 ,Earls .v County Pottawatomie of 92 .No District School Independent of Education of Board In

 participated who students all requiring policy a implemented district school a) 2002 (822 .S .U

 policy this by affected student A .testing drug to submit to activities extracurricular competitive in

 once policy this of propriety the examining in ,Court Supreme The .illegal it declare to suit brought

 by unsupported search a ,regulations administrative and safety of context the in that noted again

 Court the Moreover’” .impracticable requirement cause probable and warrant the made ,forcementen law for need normal the beyond ,needs special ‘when “reasonable be could cause probable

 Finally .test drug a of submission the require to order in suspicion individualized for need the rejected

 for district school the of need the that found ,district school the of policy the upholding in ,Court the

 the of part the on privacy of invasion the and compelling sufficiently was policy a such implementing

 School Vernonia in holding the with as Nevertheless .intrusive minimally sufficiently affected students

 drug conducting of propriety the determining in guidance limited offers case this ,Acton .v J47 District

.sector public the in employees of testing

.StateLaws/said/drugs/programs/asp/gov.dol.www://http :at website its on link a has Labor of mentDepart States United the testing drug with dealing laws states different the of overview an For 115.

.asp

.seq et 701 § ,Code .S .U 41 116.

 Rehabilitation and ADA the and testing drug to link Labor of Department States United the See 117.

.asp.ada/regs/workingpartners/drugs/programs/asp/gov.dol.www://http :at Act

 GINA administering with law by charged is Commission Opportunity Employment Equal The 118.

.law this implement to rules issuing and
12 CHAPTER

 ACTS FOR LIABILITY AGENCY

SUPERVISORS OF

 INTRODUCTION

AMENDMENT ELEVENTH THE UNDER LIABILITY STATE .I

 SUMMARY

NOTES

239

Supervisors of Acts for Liability Agency

12 CHAPTER

241

INTRODUCTION

 .employment of scope the outside acts she or he if liable personally is supervisor a ,rule general a As

,1violations rights civil for liable are capacity individual their in sued officials State

 neither although 

 their in acting were they when 1983, § under court state in sued be may officials state nor state the

.2capacity official

 :present are following the if employment of scope the within is act s’employee An 

 and time authorized the within occurs it) b; perform to employed is she or he kind the of is act the) a

.3employer the serving of intent the with ,part in least at ,performed is it) c and; limits space

 ,short In 

 a and employment to incidental least at is performed act the unless liability governmental no is there

 sheriff a whether that 1997 in held Court the ,employer the is who to As .duties s’employee the of part

.4regulations other and ,laws ,constitution s’state the by determined is state or county the of agent an is

,5Pape .v Monroe ,case earlier an In plaintiff the that decided Court Supreme States United the 

 Congress the of response the “that saying ,cases 1983 § in municipality the from recover not could

 that believe cannot we that antagonistic so was . . . actions certain for liable municipalities make to

 1978, in changed that All” .them include to context particular this in used was’ person ‘word the

,6Services Social of Department .v Monell in ,when

 for 1983 § under directly sued be can that” persons “are units government local other and palitiesmunici that holding ,itself reversed Court the 

 liable be could municipality the found Court the Although .relief injunctive or ,declaratory ,monetary

 .employment of because simply or ,superior respondeat for liability find to declined it ,damages for

 a ,liability municipal establish o]T “[,decision 1979 a ,Margate of City .v Popow from quoting ,Further

 or ,violations constitutional in results which custom or policy official an) a (either prove must plaintiff

 the in acquiescence or approval or authorization implicit evincing authority in officials by conduct) b(

7“.conduct unconstitutional

,8Jordan .v Quern In states against suits barred immunity amendment th11 that reiterated Court the 

 ,persons natural only ,result a As .immunity sovereign of doctrine the reaffirming thus ,damages for

 to done have states many which ,legislation by waived unless ,well and alive is immunity State .sentcon without damages for sued be can government of units local other and ,cities ,municipalities

 officers probation held Court the ,pay overtime for action an In .decisions court in or ,degrees varying

.9immunity sovereign to due state their sue not could

 the have not does legislature federal The 

 sovereign where states in Even .law federal a with immunity sovereign s’state a override to authority

 for supervisors own its indemnifying from state the bars nothing ,totality in applies still immunity

 a claim cannot municipalities that found Court The .duty of course the in acting while incurred liability

1983.10 § under defense faith good

 ,capacity individual her or his in sued is and employment of scope the outside acts supervisor a If

 if indemnify agency the will Neither .defense legal provide to refuse will agency the that are chances

 concern of cause justifiable a be should representation legal of matter The .liable held is officer the

 as representation provide states some Although .status undefined its of because supervisors among

.11unstructured largely is states many in representation legal that shown have surveys ,right of matter a

 ,agencies municipal In .meritorious is case the ,judgment her or his in ,if supervisor the defend to eralgen attorney state the allows understanding unwritten and informal an ,agencies and states some In

 defense the undertake to counsel legal designated no with ,uncertain more even is often practice the

 .policy representation legal official no and

 the within acted employee the if only represent will jurisdictions most ,uncertainty the compound To

 term the that except ,policy public with consistent and reasonable sound may That .duty of scope

 definition working viable and agreed An .definition precise eludes and subjective is” duty of scope“

 is it ,Additionally .anxiety alleviating and officers of rights the protecting toward way long a goes

 the outside acted officer the that finding s’court trial a that understanding an be there that necessary

 of purposes for agency local or state the on binding made be not ,liable is ,hence ,and ,duty of scope
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

12 CHAPTER

242

 of cases glaring and gross only ,Ideally .agency that by determined as circumstances on based ,cyagen the to given be must judgment independent An .appeal on representation or indemnification

 legal agency ,understanding this Without .indemnification or representation denied be should abuse

 done acts ,stands law case current as ,because mirage a be only may indemnification of assurances

 liability from exempt be to likely are employment of scope the within and faith good in supervisor a by

 .indemnify to nothing is there so ,anyway

 supervisor the If .ways of number a in interest of conflict possible a to lead can lawsuits Supervisory

 acted supervisor the that assert might agency the ,capacity individual and official an both in sued is

 mandated of absence the In .liable personally be should hence and duty of scope her or his outside

 a creates This .defense own her or his provide to have likely most will supervisor the ,representation

 implication inevitable the of because disadvantage a at supervisor the places and burden financial

 interest of conflict of source second A .unauthorized was act the agency the of judgment the in that

 for sued when ,supervisor A .subordinate her or his with relationship s’supervisor the from comes

 either claiming ,act the from himself dissociate to want may ,done has subordinate her or his what

 the where particularly ,policy agency of defiance in or own her or his on acted subordinate the that

 that with inconsistent be will defense s’supervisor the ,instances these In .blatant or gross is violation

 defend will it party the to as agency the by made be to have will Determination .subordinate the of

 but ,supervisor the for decide will agency the that are Chances .liable held if indemnify to whom and

.basis case-by-case a on policymakers by made be to decision a is that

 ELEVENTH THE UNDER LIABILITY STATE .I

AMENDMENT

 state the against suit bars Constitution States United the to Amendment Eleventh the whether cernscon sector public the in liability to regards in decade last the over issues legal emerging the of One

 or commenced “suits from immunity has state a that provides amendment This .entity governmental

 Subjects or Citizens by or ,State another of Citizens by States United the of one against prosecuted

 to amendment this in language the extended have opinions Court addition In 12”.State Foreign any of

 .situations certain under sued be may States ,Constitution States United the to Amendment teenthFour the under that is rule the to exception The .13State own her/his suing from citizen a barring also

 actions of types what examined have decisions Court Supreme States United of series a ,However

.State a against brought be can rights employment federal certain employees public affording

 ,Maine of State the ,employer their against suit filed officers probation of group a ,14Maine .v Alden In

 The .Act Standards Labor Fair the of provisions overtime the violated had State the that alleging

 the of violation alleged an over sued be could State the when concerning issue The .lawsuit the missdis to court the asked and Amendment Eleventh the to pursuant immunity sovereign claimed State

.Court Supreme States United the before raised eventually was Act Standards Labor Fair

 examined and design constitutional original of discussion lengthy a contained Alden in opinion The

 enact to authority the that understood Court The .Amendment Eleventh the of history and text the

 powers the enunciates which ,Constitution the of 1 Article from came Act Standards Labor Fair the

 the ,majority member five a By .Congress :wit-to ,Government Federal the of branch legislative the of

 the include not did 1 Article under Congress to delegated powers the that concluded Court Supreme

.15courts state in damages for suits private to States nonconsenting subject to power

 assert could it that contention s’Maine of State the with sided Alden in Court Supreme the Although

 preserved been had that sovereignty the of portion a surrender to required were States the ,mentAmend Fourteenth the adopting in that noted further Court the ,matter this in immunity sovereign

 authorize circumstances certain under could Congress such As .Constitution original the by them to

 found as powers enforcement 5 Section its to pursuant States nonconsenting against suits private
Supervisors of Acts for Liability Agency

12 CHAPTER

243

 may employment in discrimination with dealing laws federal Because .Amendment Fourteenth the in

 subsequent in Court Supreme the ,Amendment Fourteenth the of 5 Section under authorized be

 employer state a against employee public a by filed actions of causes what examine would decisions

.immunity sovereign of claim a defeat would

 an examine to opportunity the had Court Supreme the Maine .v Alden in decision its Following

 .v Kimel in Amendment Fourteenth the of 5 Section under claim immunity Amendment Eleventh

 Board University Florida the against suit filed plaintiffs the case this In .16Regents of Board Florida

 defendant The .)ADEA (Act Employment in Discrimination Age the under ,agency state a ,Regents of

 whether consider to asked was Court the ,Court Supreme States United the before brought tuallyeven was case this When .immunity Amendment Eleventh of basis the on suit the dismiss to moved

 Amendment Eleventh’ States the abrogate to intended 1974, in ADEA the amending in ,Congress

.authority constitutional’ Congress of exercise proper a was ADEA the whether ,so if and ,immunity

 enforce to authority the Congress gave Amendment Fourteenth the to 5 Section that noted Court The

 or privileges the abridge shall which law any enforce or make shall State no “that provisions its

 or ,liberty ,life of person any deprive State any shall nor; States United the of citizens of immunities

 5 Section under law a enact to order in ,that noted further Court the Nevertheless” .laws the of tionprotec equal the jurisdiction its within person any to deny nor; law of process due without ,property

 clear a be to had there ,suit from immunity s’State a abrogated that Amendment Fourteenth the of

 to pursuant enacted legislation remedial the for and so do to intended it that Congress by showing

 The .end that to adopted means the and remedied or prevented be to injury the between tionalitypropor and congruence a be to had there ,appropriate be to Amendment Fourteenth the of 5 Section

 had Congress that revealed whole a as record legislative s’ADEA the that found case this in Court

 against discriminating unconstitutionally were governments state that believe to reason no virtually

 by discrimination age unconstitutional and widespread of evidence of lack the and requirements tivesubstan s’Act the of scope indiscriminate the of light in such As .age of basis the on employees their

 under power’ Congress of exercise valid a not was ADEA the that held Court Supreme the ,States the

 s’State the of abrogation purported s’ADEA the therefore and Amendment Fourteenth the of 5 Section

.invalid be to held accordingly was immunity sovereign

 of University the of Trustees of Board decided Court the decision Kimel the following Immediately

 damages money seeking lawsuit a filed employee state Alabama an suit this In .17Garrett .v Alabama

 lawsuits other in As .)ADA (Act Disabilities with Americans the under Alabama of State the against

 case this Eventually .Amendment Eleventh the under immunity claimed State the here discussed

 be could ADA the whether examined Court the where ,Court Supreme States United the reached

.Amendment Fourteenth the of 5 Section through States the against enforced

 abrogated ADA the of enactment whether determining for standards two same the applied Court The

 ,Nevertheless .immunity Amendment Eleventh’ States the abrogate to intended unequivocally gressCon that dispute no was there that recognized first Court The .Kimel in did it as immunity’ States the

 subjecting by authority constitutional its within acted Congress whether to as remained question the

.ADA the under damages money for court federal in suits to States the

 Congress whether examine to had it that stated Court Supreme the question this answer to order In

 against States the by discrimination employment unconstitutional of pattern and history a identified

 the on record legislative the that found Court the matter this examining In .disabilities with people

 discrimination state irrational of pattern a identify fact in did Congress that show to failed simply ADA

 imposed remedy the that found Court the ,Moreover .disabilities with people against employment in

 As .violation targeted the to disproportional and incongruent was ADA the under States the against

.18Amendment enthElev the under immunity’ States the abrogate not did ADA the of passage that held Court the such
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

12 CHAPTER

244

 not could statute Federal on based discrimination of claim any that assume might one point this At

of Department Nevada In .assumption incorrect an is that However .State a against asserted be

 ‘States the abrogate could Congress that held Court Supreme the ,19Hibbs .v Resources Human

 Family the to pursuant filed action an for court federal in suit from immunity Amendment Eleventh

 of Act Rights Civil the of passage that held long has Court the Moreover .Act Leave Medical and

.20immunity Amendment Eleventh’ States the abrogated 1964

 is plaintiff a if ,because is law Federal under arising suits employment in immunity Amendment enthElev of application the of aware be to employees public of supervisors for important is it reason The

 suit file will plaintiff the that likelihood the increases that then ,entity state a against going from barred

 state against not but States against suits bars immunity Sovereign .supervisor individual an against

 ,Thus .counties or cities as such subdivisions political not and state the to applies only immunity mentAmend Eleventh ,Moreover .21capacities individual their in sued where damages money for officers

 whether determine may subdivision political a or entity level state a for works supervisor a whether

 will capacity individual her/his in supervisor the whether or sued be will itself entity governmental the

 in Government Federal the by enforced be still may ADEA the as such laws discrimination-anti ,mentAmend Eleventh the by barred be may state a against lawsuits private though even ,Finally .sued be

.22damages monetary for actions

SUMMARY

 and personnel parole and probation against litigation civil of source fertile a is liability Supervisory

 to supervisors for need the suggests strongly field this in law case developing The .departments

 because ,attention immediate deserves that area An .department their in subordinates ,of tenciescompe the and ,among on goes what of aware more be to and job their of limits legal the know

 in area neglected a is training that are Indications .train to failure is ,litigation court increasing of

 pay low of because ,that field a is general in corrections because deplorable is This .corrections

 justice criminal in subsystems other the than more even training needs ,status job unattractive and

 financial of because supervisors for arise Problems .upgraded be to is personnel of quality the if

 resources financial commit to makers decision political of reluctance the by occasioned constraints

 supervisor the for implications legal serious carries neglect Such .need perceived despite ,training to

 .attention immediate and proper given be must hence and ,makers decision and

 to do they what for liable are supervisors ,do subordinates their what for liability civil to addition In

 by given are that subordinates their of rights the with familiar be must Supervisors .subordinates their

 These .agreements bargaining collective and ,policy agency ,laws state and federal ,Constitution the

 .litigation of source rich a become have and state to state from lot a vary rights

 have must Agencies .supervisors for concern particular of area an be should harassment Sexual

 if absolute is Liability .investigated promptly be should complaints and ,harassment sexual on policies

 environment work hostile a for incurred be also will Liability .quo pro quid was harassment sexual the

 and environment work hostile a create that behaviors banning policy internal strong no is there if

.addressed or investigated properly not are allegations

 Judicial .gone are parole and probation in supervisors among discretion unfettered of days The

 can it yet ,supervisor parole or probation a for frustrating sometimes and irritating be can scrutiny

 .deserves and desires public the something ,administration equitable and effective more to lead also

 with realities are they but ,blessing mixed a be may liability supervisory and intervention Judicial

.cope and live to learn must supervisors parole and probation which
Supervisors of Acts for Liability Agency

12 CHAPTER

245

NOTES

.(1991) 21 .S.U 502 ,Melo .v Hafer 1.

.(1989) 58 .S.U 491 ,Police State of Department Michigan .v Will 2.

14-1. at 15, note supra ,Report Special AELE See 3.

.(1997) 781 .S.U 520 Alabama ,County Monroe .v McMillan 4.

.(1961) 167 .S.U 365 5.

.(1978) 658 .S.U 436 6.

.(1979) 1245 at 1237, .Supp .F 476 7.

.(1979) 332 .S.U 440 8.

.(1999) 706 .S.U 527 Maine .v Alden 9.

.(1980) 622 .S.U 445 ,Independence of City .v Owen 10.

 ,Trends; Officers Parole and Probation of Responsibilities Legal “,Carmen del .R ,general in ,See 11.

.(1981 .Sept) (3 (45 Probation Federal” ,Questions and ,Advice General

 A .damages monetary for individuals private by filed suits bars only Amendment Eleventh The 12.

 requesting only is plaintiff private the where immunity Amendment Eleventh assert cannot state

 .v Alabama of University the of Trustees of Board See .judgment declaratory a or relief injunctive

.(2001) 356 .S .U 531 ,Garrett

.(1890) 1 .S .U 134 ,Louisiana .v Hans 13.

.(1999) 706 .S .U 527 14.

.(1996) 54 .S .U 517 ,Florida .v Florida of Tribe Seminole ,also See 15.

.(2000) 62 .S .U 528 16.

.(2001) 356 .S .U 531 17.

 Americans the to II Title that held Court Supreme the) 2004 (509 .S .U 541 ,Lane .v Tennessee In 18.

 of reason by ,shall disability a with individual qualified no “that provides which ,Act Disabilities with

 programs ,services the of benefits the denied be or in participation from excluded be ,disability such

 valid a constituted ,entity such any by discrimination to subjected be or ,entity public a of activities or

 Amendment Fourteenth the of guarantees the enforce to authority 5 Section’ Congress of exercise

.immunity Amendment Eleventh’ States the abrogated ADA the of enactment the therefore and

.(2003) 721 .S .U 538 19.

.(1976) 445 .S .U 427 ,Bitzer .v Fitzpatrick 20.

.(1999) 706 .S .U 527 ,Maine .v Alden See 21.

.C .O .E .E ,also see); 2001 (356 .S .U 531 ,Garrett .v Alabama of University the of Trustees of Board 22.

.(2002 .Cir th7 (296 d3 .F 288 ,System Wisconsin of University the of Regents of Board .v

13 CHAPTER

RIGHTS’ INMATES OF NATURE THE

 INTRODUCTION

RIGHTS SUBSTANTIVE .I

 RIGHTS PROCEDURAL .II

 SUMMARY

NOTES

247

Rights’ Inmates of Nature The

13 CHAPTER

249

INTRODUCTION

 States United the in parolees state and federal 828,169 estimated an were there 2008, of end the At

.1release supervised conditional under

2007.2 yearend at than more 7000 about and 2000 in parole on alsindividu 723,000 approximate the than higher is number That 

 approximately were there 2008, In 

.3exiting 574,000 about and supervision parole entering persons 581,000

 has population parole The 

 parole of number the exceeded has entries parole of number the as 2000 since year each grown

.4exits

 Of .parolees of failures and successes the with familiar are officials parole state and Federal 

.5early discharged were or sentence term-full a served and sionsupervi of conditions their met had percent 49 2008, in parole from discharged individuals 574,000

.6ceratedreincar been had percent 36 About 

 more and ,revocation parole of result the were prison to returned who those of majority The 

.7sentences new with reincarcerated been had than absconded had parolees

 are numbers These 

 hundreds for potential the indicate they ,Moreover .decade a almost for with flooded been have ciesagen parole state and federal that of work of volume the represent They .statistics mere than more

 .year each officials parole against filed be to lawsuits of thousands of

 parole adult state 52 were there ,Statistics Justice of Bureau the by conducted census 2006 a In

.8structures administrative of types different in States United the in agencies supervising

 no is There 

 in” parole of system uniform “no and agencies state the among procedures parole of standardization

.9States United the

 of outside and within groups and individuals of number a affect that decisions make officials Parole

 board parole a of focus immediate the is inmate individual the Although .system justice criminal the

 ,officers parole ,judges ,prosecutors ,officials enforcement law ,families their and victims ,large-atcommunity the of members ,family s’inmate the includes also decision the of effect the ,decision

 governmental-non and governmental in individuals and ,entities ,agencies other of number any and

 in) KSAs (abilities and skills ,knowledge specific need members and executives board Parole .10roles

 ;guidelines and tools assessment) 1 (including ,techniques and concepts several utilize and prehendcom to capability the is KSAs these Among .decisions release effective and ,fair ,lawful craft to order

 and ,release of conditions special and general appropriate) 3 (,techniques interviewing effective) 2(

 management risk proactive ,current KSAs keeping with Along .11violations to responses effective) 4(

.liability legal to exposure reducing to approach excellent an is

 clinical ,individual an) 1 (:making decision for strategies three of one use may board parole state A

 the about beliefs and values individual her or his of basis the on members board other the from lyindependent decision a makes member board parole a ,approach clinical ,individual the In .12proachap based-evidence ,driven-policy a) 3 (or ,approach based-evidence ,individual an) 2; (approach

 makes still member the ,approach second the In .13system justice criminal the of purposes and goals

 assessment risk .,g.e (information based-research the consider may but ,decision independent an

 the of objectives the or ,retribution ,punishment about philosophy her or his than rather) instruments

 attempt members the which in approach consensus a is approach third The .14system justice criminal

 use efficient ,overcrowding reducing .,g.e (goals” system “and) proportionality and ,equity ,fairness talfundamen .,g.e (goals” normative “include may which decisions release the of goals the on agree to

.15(credibility and accountability agency and ,resources correctional of

 criminal the in development contemporary relatively a is instruments assessment risk of use The

 been has corrections in decisionmaking based-evidence for importance Their .sciences justice

 used being were tools assessment risk of form some that indicated survey Division Corrections nityCommu Corrections of Institute National 2001 A .processes decision parole in emphasized recently

 Parole .16them use to planning were states other 8 and ,states 24 in consideration release parole for

 risk-higher for supervision enhance may that decisions release based-evidence adopted have boards

 ,offenders risk-high on supervision Focusing .17public the to danger greater a pose who offenders
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

13 CHAPTER

250

 increasingly is that management risk of form a is ,offenders risk low relatively on than rather

 .authorities parole by employed

 making decision release parole on research empirical in gap a was there ,years 20 than more For

 the in conducted was research recent most The .release discretionary of emergence-re the to prior

 ,history criminal ,severity crime ,behavior institutional “were decisions release parole affected marilypri that factors the that found articles empirical of review a ,However .18s2000 early and s1990 late

 highly “was input victim ,factors these Of 19”.input victim and ,illness mental ,length incarceration

 process making-decision parole the studied who researchers of team A 20”.factors influential nificantlysig other for controlling when inmates eligible-parole for parole of denial the explaining in significant

 release affect believe inmates factors the “that found Colorado in inmates of perspective the from

 fail inmates why explain may This .considers board parole the factors the from different are decisions

 upon imposed prerequisites the with compliance despite deferred is parole their why understand to

.21them

 grand like much ,that in difficult is decisionmaking release parole on research empirical Scholarly

 from Data .nature in confidential and” secret “somewhat are hearings release the ,proceedings jury

 scholars legal few A .analysis statistical descriptive than more little allow outcomes decision release

 .S.U of line a of purview the within are processes revocation and release parole that argued have

 has Court the ,cases of group this Within .22sentencing to applies that law case Court Supreme

 must penalty a enhances that fact any that and advisory are guidelines sentencing that determined

 if determine to 24”criminal the of state current the “assess should ,functions judicial-quasi cretionarydis perform which boards parole not and ,juries that suggest scholars These .23jury a to submitted be

 surmise authors These .revoked be should parole their if or world-free the to return to ready are they

 of effects The .jury a of power and scope constitutional the within well are determinations parole that

 and program or research empirical More .best at questionable are parole to power the jury a giving

 and ,efficiency ,effectiveness the about inferences draw to order in needed are evaluations process

.outcomes and ,procedures ,processes s’hearing release parole the and boards parole of fairness

 Attorneys their ,counsel agency :sources of range a from advice legal to access have officials Parole

 parole a anytime ,Moreover .parole govern that policies and ,regulations ,rules ,statutes about tionsques have they when counsel legal consult should Officials .25attorneys private retained or ,General

 legal other or lawsuit a to related be to appears that correspondence or document a receives official

 without document the deliver and counsel designated contact immediately should she or he ,)umentdoc legal suspected other or ,request discovery ,subpoena ,complaint ,summons .,g.e (proceeding

.26delay

 parole in true certainly is this and ,officials parole against action legal most of source the are Inmates

 officials parole against suits filed also have families their and victims ,However .decisions release

 .parolee a by killed or harmed was victim a when especially ,decisions release of aftermath the in

 seek may plaintiffs ,filed is suit the which under laws the and claims their of bases the on Depending

 a If .fees attorneys and ,costs; relief declaratory or ,injunctive ,equitable or/and; damages monetary

 depends defense available The .immunity sovereign or ,immunity qualified ,immunity judicial-quasi ,tyimmuni absolute :available defenses several are there ,sued are officials commission or board parole

 act the whether on and capacities individual or official their in sued are officials parole the whether on

 parole a If .function judicial-quasi discretionary a performing were they while occurred omission or

 are damages and capacity official an in liable held is examiner or ,commissioner ,member board

 an or indemnification of rule or statute a has jurisdiction s’board the if apply may indemnity ,awarded

 .contract insurance

 s’plaintiff the on depending ,court federal or state a either in brought be can action of cause civil A

 in filed are decisions hearing parole in rights constitutional or laws federal involving Suits .)s(claim

 which in action 1983 § a is it unless ,court state in filed be will suit a ,Otherwise .courts district federal
Rights’ Inmates of Nature The

13 CHAPTER

251

 filed usually are suits such although ,court district state or federal a either in file may plaintiff the case

.court federal a in

 range full the to entitled necessarily not are inmates prison that held has Court Supreme .S.U The

 may they least very the At .27decisions release parole in Constitution the under rights process due of

 .v Greenholtz .jurisdictions some in protections process due minimal or diminished to entitled be

 s’Nebraska .process due procedural of denial alleging Board Parole Nebraska the against filed suitlaw action class a from stemmed) 1979 (Complex Correctional and Penal Nebraska of Inmates

 inmates allowing including ,hearing parole stage-two a prescribed procedures parole discretionary

 ;counsel appointed or retained by represented be; behalf their on witnesses call; evidence present to

 ,procedures administrative these Given .parole of denial for reasons the of writing in notified be and

 it with carry not does release parole discretionary of possibility mere the although that held Court the

 created it that way a such in worded was statute state the ,Constitution the under rights process due

 important three down laid case this in Court The .process due to inmates entitling interest liberty a

 :parole granting for principles constitutional

 released conditionally be to person convicted a of right inherent or constitutional no is There■ 

 .right a not and privilege a is parole ,stated Simply .sentence valid a of expiration the before

 .so do to duty no has it but ,system parole a establish may state A■ 

 is one when as ,has one interest liberty a of deprived being between distinction crucial a is There■ 

 as ,desires one liberty conditional a denied being and ,revoked being is it and parole on already

.paroled be to seeks prison in inmate an when

 does Constitution the that reiterated Court Supreme .S.U the ,28)1987 (Allen .v Pardons of Board In

 mandatory using statute Montana a that found Court The .system parole a have to states require not

 release parole in interest liberty a created ,Greenholtz in statute Nebraska the to similar ,language

 The .Amendment Fourteenth the of Clause Process Due the under protection some required and

 the that determines it when inmate an release” shall “board parole the that states statute Montana

 .decisions release making in discretion broad have boards parole that recognized Court the ,holtzGreen in as ,Allen In .release the preclude conditions specified unless ,harmful be not will release

 release parole “that opining in case the cited and Greenholtz in decision prior their upheld Court The

 filtered observation personal and facts record of synthesis a ‘involving judgment type-equity an is

 best is what to as judgment predictive a to leading and decisionmaker the of experience the through

29“.community the for and inmate individual the for both

 ‘Appeals of Courts Federal of categories four were there that Allen in footnote a in stated Court The

 or statutes that held have courts ,Next .release of presumption a create explicitly or language rymandato contain regulations or statutes where interest liberty a find may courts ,First .decisions

 ,Third .release in interest liberty a create not does language release” may “contain that regulations

 person a that provide that statutes for parole in interest liberty of issue the on divided have courts

 ,however;” met are conditions certain when only “released be shall or” ,unless released be not shall“

 but ,release before met be must “that criteria have statutes these that determined have courts most

 interest liberty a that hold courts ,Finally .made are findings those if release require not do they...

 to guidelines explicit and elaborate uses “scheme release parole regulatory or statute a where exists

30“.discretion of exercise the structure

 the of issue the on stance different a taken have to seemed Court the ,Conner .v Sandin in 1995, By

 parole a not ,hearing disciplinary prison a involved Conner but ,regulations or statutes of wording

Conner that appears it ,authority discretionary broad have boards parole Because .hearing release

 Supreme the remain to seem Allen and Greenholtz .decsionmaking release parole to apply not does

 rules and statutes state of diversity the given ,However .hearings release parole for precedents Court

 officials parole ,Appeals of Courts Federal the among decisions of and release parole regarding
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

13 CHAPTER

252

 .jurisdictions their in decisions court ingbind and schemes hearing release state proper the under operating are they that certain be should

 parole state against brought lawsuits of types frequent more the of some discusses chapter This

 .Appeal of Courts Circuit Federal and Court Supreme .S.U the in developed law case on focuses allygener discussion The .examiners and commissioners federal and ,members and executives board

 precedents Court Supreme .S.U The .applicable where noted and discussed be will cases court State

 within states affect that cases court circuit federal by followed ,precedents important most the are

 they but ,chapter this in use for instances some in exemplary be may cases State .jurisdictions their

 parole court state a ,words other In .decided were they where jurisdiction state the in binding only are

.Missouri ,Louis .St in official parole a on bearing no has Texas ,Austin in decided case

 parole of liability ,decisions release and procedures release parole to pertaining issues Legal

 of violations for liability and ,parolees by committed crimes for public general the to members board

 and processes decisionmaking parole of topics The .chapter this in analyzed be will rights’ inmates

 and individuals other of host a to and parolees prospective to interest significant of are procedures

.litigation prolific of areas also are They .entities

 when used be will” officials parole “term the ,chapter this in used language the simplify to order In

 in examiners and commissioners federal and executives and members board parole state discussing

 ,statutes Where .officers parole include not does term this ,chapter this of purposes the For .general

 used be will term particular that ,official parole of type specific a to refer cases or ,regulations ,rules

.discussion the in

RIGHTS SUBSTANTIVE .I

 rather substance of right a; law by enforced or protected be can that right] a “[is right substantive A

 racial of claim a involves case first The .law by protected are that liberties civil fundamental of privedde were inmates that alleged boards parole against claims 1983 § involving cases Two 31”.form than

 .discrimination and freedom religious around revolves second the and discrimination

 racial systematic claimed inmate the ,decision Circuit Seventh Federal a ,32Irving .v States United In

 Hospital Eagleville .v Jones In .releases parole to respect with inmates black against discrimination

 against suit brought plaintiff the ,case Court District Pennsylvania 1984 a ,33Center Rehabilitation and

 skullcap a remove to refusal his of because revoked was parole his that alleging board parole the

 .program treatment drug a in participating he while him to significance religious had that

 that noted court the ,However .members board parole for immunity absolute found court Irving The

 to tended evidence the because addressed be still could relief declaratory for claim s’plaintiff the

 the found court Jones The .board parole the of part the on discrimination impermissible demonstrate

 parolee the that found court the ,skullcap his remove to refusal s’plaintiff the upon treatment natedtermi that hospital the to regard With 1983. § of meaning the within” person a “not was board parole

 state “was taken action the that establish he should entity the against claim a make possibly could

 “.action

 RIGHTS PROCEDURAL .II

 in helps that right a; procedure administrative or legal from derives that right] a “[is right procedural A

 by suits to subjected also are boards Parole 34”.right substantive a of enforcement or protection the

 rights s’person a that ensures process Due .violations process due procedural alleged for offenders

 .hearing release parole a in ,instance for—proceeding administrative or legal a in violated not are

 .rights constitutional minimal ,diminished have inmates that is ,however ,remembered be must What
Rights’ Inmates of Nature The

13 CHAPTER

253

 process due without deprivation suffer cannot inmate an ,created been has interest liberty a Where

 Court Supreme the ,Greenholtz In .protections process due greater requires which hearing vocationre a in stake at those as same the not are hearing release parole a in stake at interests The .law of

 to opportunity the afforded was inmate an where satisfied was process due procedural that found

 .behalf his on written been had that statements and letters present

 procedural of contexts the within compliance uncomplicated relatively demonstrates law case Some

 denial for on relied evidence the of summary a that held 35Lane .v Partee .immunity and process due

 that discretion broad on based are decisions Parole .process due by required not was parole of

 parole that determined court Partee the ,Furthermore .authority parole the to granted statutorily is

.applications parole processing when taken actions for suits 1983 § from immune absolutely are boards

 of misapplication for commissioner parole federal a against action 1983 § a was 36Keller .v Adams

 evidence no found court The .date parole s’plaintiff the of setting s’commission parole the by cretiondis of abuse of claim s’plaintiff the for basis factual the examined court The .guidelines parole youth

 the ,However .commissioner parole the by authority of scope the outside action of or faith bad of

 s’commission parole the on based affirmed was hearing parole new a to right the of claim s’plaintiff

 found court The .date parole a setting when rehabilitation to response s’plaintiff the consider to failure

 in deterrence and ,retribution ,punishment of concepts apply to intended Congress although that

 totally abandon to intended Congress that indication no was there ,Act Corrections Youth the passing

 .rehabilitation s’inmate an for potential of consideration any

 circumstances mitigating of explanations contained that mail s’inmate the intercepting by rights tionalconstitu his violated officer hearing parole state the that charged plaintiff the ,37Warden .v Corby In

 s’officer hearing the on based was claim the that found court The .parole of violation alleged the for

 .immunity judicial-quasi to entitled ,therefore ,was officer the that and officer judicial a as acts

 the although that held 39Board Review Prisoner .v Walker .parole revoking or ,denying ,granting to ingrelat decisions for immunity found easily courts ,38boards parole against suits 1983 § other three In

 rights process due of violation a was file his to access inmate the allow to board parole the of failure

 official these for immunity absolute affirmed nevertheless court the ,law statutory under provided

 would articles newspaper various of consideration s’board parole the that held court The .actions

 the refute to opportunity an given been not had inmate the unless process due of violation a be not

 array wide a consider to entitled is board the that determined also court The .them in information

 inmate the which with crime the to relation any bear not need information such and ,information of

 the of tasks all that holding s’Circuit Seventh Federal the noted court the ,Finally .charged is plaintiff

 absolute enjoy officials parole Illinois ,Therefore .recognized was functions adjudicatory and isterialmin between distinction no that meaning ,nature in adjudicatory were Board Review Prisoner Illinois

 .actions official all virtually for immunity

 analysis legal of pattern similar a exhibits cases liability board parole of categories above the of Each

 board Parole .rights procedural and substantive’ inmates involve that issues for results similar and

 be will operate they which under statutes the of analysis careful that find may counsel and members

.requirements process due procedural and substantive satisfying to guide useful a

SUMMARY

 of violation for inmates to boards parole of liability the to related issues discusses chapter This

 procedural the observe and caution exercise must officials Parole .rights procedural and substantive

 laws these from deviation because jurisdiction their in policy agency or law by prescribed guidelines

 these if even ,inmate an due are that rights of number a of violations of issues raise can policies and

 .minimal are rights
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

13 Chapter

254

NOTES

 of Bureau 2008, ,States United the in Parole and Probation ,Bonczar .P Thomas & Glaze .E Lauren 1.

.usdoj.ojp.bjs://http at available) 2009 December) (228230 NCJ (DC ,Washington :Statistics Justice

.pdf08.ppus/pdf/pub/content/gov

.Id 2.

.Id 3.

.Id 4.

.Id 5.

.Id 6.

.Id 7.

 Justice of Bureau 2006, ,Agencies Supervising Parole State of Characteristics ,Bonczar .P Thomas 8.

.usdoj.ojp.bjs://http at available) 2009 .Mar .rev; 2008 .Aug) (222180 NCJ (DC :Washington :Statistics

 and Corrections of Department a within were agencies these of eight-Thirty 2006. year-mid at ciesagen parole adult 52 were there that states report census The (pdf06.cspsa/pdf/pub/content/gov

 :administration of forms different under were others Three .agencies parole independent were 11

 and ,Safety Public of Department Nevada the ,Corrections Community of Department Arkansas the

.(1. .p ,system parole based-county s’Oregon

 Judicial Absolute of Expansion Improper The :Tent Big a Not is Robe Black A ,Johns .C Margaret 9.

 ,Thompson .A Julio citing) 2006 (265, .Rev .L SMU 59 ,Cases Rights Civil in Judges-Non to Immunity

 in Members Board Parole to Immunity Judicial-Quasi Denying :Make Bench a Not Does Board A

.(1988) 249 241, .Rev .L .Mich 87 ,Actions Damages 1983 Section

 Peggy (6, .ch ,Members Board Parole New for Handbook A ,Corrections of Institute National the & alInternation Authorities Paroling of Association The” ,Issues Ethical and Legal “,Stroker .P Richard 10.

.pdf.Handbook CEPPParole/documents/org.apaintl.www://http at available) 2003 April .,ed ,Burke .B

 Competencies Core Enhancing :Success for Framework a Constructing ,Conference Training nualAn 2009 ,International Authorities Paroling of Association the at Presentation ,Stroker .P Richard 11.

.www:/http at available); 2009 20, April (,Executives Board Parole and Members Board Parole for

.ppt.stroker/2009/training/documents/org.apaintl

 37-38. .pp 4, .ch ,Members Board Parole New for Handbook A 9, note supra See 12.

37. .p at .Id 13.

37-38. .pp at .Id 14.

38. .p at .Id 15.

pdf/2001/017178.pubs/org.nicic://http at available results Survey 16.

 Risk-Higher on Supervision Targeting :Impact Maximum ,States the on Center Pew The .,g.e See 17.

.www://http at available) 2009 July (9 .No Brief Policy Safety Public ,Times and Places ,People

 of Association The also See; pdf.web_Impact_Maximum/uploadedFiles/org.pewcenteronthestates

 Parole New for Handbook A ,Corrections of Institute National the & International Authorities Paroling

 /org.apaintl.www://http at available) 2003 April .,ed ,Burke .B Peggy (4, .ch ,Members Board

.pdf.Handbook CEPPParole/documents

 .Rep g’Sent .Fed 71 ,Research Empirical of Review A :Parole Affect Factors What ,Caplan .M Joel 18.

.(2007) 1
Rights’ Inmates of Nature The

13 CHAPTER

255

16. at .Id 19.

18. at .Id 20.

,Perspective Inmate An :Parole of Denial ,Poole .D Eric and ,Pogrebin .R Mark ,Smith-West Mary 21.

.(2000) 9 2, Probation .Fed 64

 United); 2004 (296 .S.U 542 ,Washington .v Blakely); 2000 (466 .S.U 530 ,Jersey New .v Apprendi 22.

 .(2005) 220 .S.U 543 ,Booker .v States

 1307 .J.L .St Ohio 68 ,Sentencing Hidden and Justice Retributive ,Appleman .J Laura .,g.e See 23.

 the and ,Sentencing Indeterminate Apprendi :Cruel and ,Atrocious ,Heinous ,Ball David .W); 2007(

 :Parole Policing ,McBride .C Elizabeth ,Note); 2009 (893 .Rev.L .Colum 109 ,Punishment of Meaning

 .(2009) 597 .Rev y’Pol & .L .Stan 20 ,Sentencing end-Back of Limits Constitutional The

972. at 23 note supra Ball See 24.

6. .ch” ,Issues Ethical and Legal “,Stroker .P Richard 10, note supra See 25.

58. at .Id 26.

.(1979) 1 .S.U 442 ,Complex Correctional and Penal Nebraska of Inmates .v Greenholtz 27.

.(1987) 369 .S.U 482 28

 8. at 11 note supra Greenholtz citing 375, at .Id 29.

.10.n 378, at .Id 30.

.(2009 .ed th9 (Dictionary Law s’Black 31.

.(1982 .Cir th7 (494 d.2F 684 ,Irving .v States United 32

.(1984 .Pa .D.S (53 .Supp .F 588 ,Center Rehabilitation and Hospital Eagleville .v Jones 33.

.(2009 .ed th9 (Dictionary Law s’Black 34.

.(1982 .Ill .D.S (1254 .Supp .F 528 ,Lane .v Partee 35.

.(1983 .Cir th6 (1195 d.2F 713 ,Keller .v Adams 36.

 .(1983 .Y.N.D.S (431 .Supp .F 561 ,Warden .v Corby 37.

 Ross); 1984 .Mo .D.S.U (411 .Supp .F 586 ,Parole and Probation of Department Missouri .v Walker 38.

 .Supp .F 594 ,Board Review Prisoner .v Walker); 1984 .Y.N.D.S (536 .Supp .F 574 ,States United .v

 .(1984 .Ill .D.S (556

 168. note supra at Walker 39.

14 CHAPTER

 PAROLE AT RIGHTS’ INMATES

HEARINGS RELEASE

 INTRODUCTION

COUNSEL TO RIGHT .I

 Federal .A

 State .B

 CRITERIA RELEASE .II

Federal .A

 State .B

 PAROLE OF DENIAL FOR EXPLANATION .III

 Federal .A

 State .B

LITIGATION OF AREAS OTHER .IV

Release to Prior Parole of Rescission .A

Parole of Conditions .B

Claims Facto Post Ex .C

SUMMARY

 NOTES

257

Hearings Release Parole at Rights’ Inmates

14 CHAPTER

259

INTRODUCTION

 COUNSEL TO RIGHT .I

 that is hearings release parole at representation on rule general the ,law constitutional of matter a As

.1counsel appointed to or retained either to right Amendment Sixth no is there

 federal or state Any 

 not do jurisdictions most but; policy agency or ,rule ,statute by representation allow may jurisdiction

 release or application parole in counsel legal adversary as inmates represent to attorneys permit

 most and ,hearing release the at counsel retained with experimented have states Several .hearings

.2hearings the for preparation in attorney an to access inmates allow historically states

 balancing pronged-three the ,made is hearings release parole in counsel to right of claim a Where

3(1976) Eldridge .v Mathews in test

 attempt courts where applies usually test The .applied be may 

 three The .stake at is property or ,liberty ,life s’individual an where due is process what determine to

 providing of interests governmental the) 2 (,stake at interest private the) 1 (:are weighed be to factors

 a of deprivation erroneous of risk the) 3 (and ,process decisionmaking a in safeguard procedural a

 hearings release parole in counsel to right of lack The .provided not is safeguard the if interest private

 other some has or illiterate is inmate the and complex extremely is case a where contestable be may

 .process the of understanding basic a having from her or him prevent would that disability

 the have generally inmates because litigated rarely is hearings release parole at counsel to right The

 parole in behalf their on or them with appear representative attorney-non one least at have to right

 of issue the with connection in brought be cannot case 1983 § a that certain is It .hearings release

 or law federal a of violation no is there because ,hearing release parole state a at counsel to right

 .S.U the on decided are counsel to right’ inmates of cases many ,test balancing Mathews the of ityavailabil the Despite .issue the on silent are statutes where law state of color under Constitution the

 .below discussed is which Safley .v Turner in analysis s’Court Supreme

 Federal .A

 release parole the a to her or him accompany to counsel retain to prisoner federal a of right The

 Act Reorganization and Commission Parole the of enactment the to prior issue at was hearing

 Commission Parole States United the renamed was Parole of Board the before) PCRA (1976 of

.4(USPC(

 may ,commences determination parole a before ,prisoner a that provided PCRA The 

 and ,Commission the of regulations and rules the under qualifies who representative a with consult

.5representatives of class a as excluded be to not were attorneys that

 of Act Reform Sentencing The 

1984,6

1984,7 of Act Control Crime Comprehensive the of part  offenders federal for parole abolished 

1987.8 1, November after or on offenses committed who

 United the to pursuant 2011, until ,However 

2008,9 of Act Extension Commission Parole States

 independent an remain to authorized is USPC the 

 committed who inmates eligible-parole of oversight with Justice of Department .S.U the within agency

 1987. 1, November to prior offenses their

 an orders Commissioner Regional a unless ,Instead .board parole a maintain not does USPC The

 forwarded is recommendation s’examiner The .10confined is inmate the which in facility the at aminerex single a by conducted is hearing the ,examiners hearing two by conducted be to hearing initial

 is prisoner eligible-parole the if date release a establishes Commission the and commissioner a to

 public-non a for docketed is name s’inmate the unless granted be not shall interview such but ,tativesrepresen its of any or ,Commission the with interview an request may inmate An .11release granted

.12procedures Commissions the to pursuant hearing
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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 function to individual an choose may inmate an ,)2010 30, June of as (rules USPC current the Under

 an whether to as silent is) 2.13 (§ Manual Procedures and Rules USPC The .14representatives tionaladdi of appearance the permit to discretion has examiner hearing the ,person one to limited mallynor is representation Although .13hearing release interim statutory or initial an at representative a as

 attorneys permits rule the but ,hearing release interim or initial an at representative a be can attorney

 has law case that fact the of view In .hearings revocation institutional or local at representatives be to

 or he that presumption no is there ,parole to right constitutional no have inmates that established

 inmate an that mean not does This .hearing release parole federal a at attorney an to right a has she

 .hearing release parole a after or before attorney an with correspond and of advice the seek cannot

 to hearing release parole a at appear to attorney an for right no has inmate the that means simply It

 inmates of classes all to apply necessarily not does this ,However .counsel legal adversarial as act

.15USPC the by overseen

 District the for Appeals of Court Federal the ,16)2005 (Commission Parole States United .v Settles In

 the against action of cause a brought had who Settles inmate by appeal an considered Columbia of

 sentenced and convicted was Settles .Code Columbia of District the under sentenced and victedcon were who felons eligible-parole of oversight retained has USPC The .warden the and USPC

 to him permitted that regulation s’USPC the under prisoner eligible-parole a was and code the under

 to allowed not was He .facilities specified certain in hearings parole at counsel by accompanied be

 private a at housed was he because hearing release parole first his at present representative a have

 rule a invalidate would that relief injunctive and declaratory requested He .Ohio in facility correctional

 were they if hearings release parole their at representatives having from inmates disallowed) 1 (that

 and ,Corrections of Department .C.D the with contract under facilities in housed offenders Code .C.D

 lower A .hearing parole new a at present representative a have to opportunity the him permit not) 2(

 the for judgment summary entered and standing of lack for case’ Settles dismissed court federal

 to regulations its revised has Commission the lthough]a [that stated Court Circuit The defendants

 case this ,)omitted citation (hearings parole at representation have to offenders Code .C.D all permit

 a of form the in relief injunctive seeks and released been yet not has Settles because moot not is

17“.hearing parole new

 Administrative and 1983 § his to turned they and standing had Settles that determined court The

 not was Settles Although .immunity sovereign had ,defendant the as named had Settles whom ,sionCommis the because barred was claim 1983’ § Settles that held court The .claims Act Procedures

 against complaint a as complaint his construe liberally court the that requested he ,litigant se pro a

 liberality the extend not did law case that noted court the but ,members individual s’Commission the

 .defendants renaming to approach

 court appellate the ,hearing release his at representative a to entitled was he that claim’ Settles to As

 to chosen had Commission the that said court The .Settles against judgment summary the upheld

 constraints structural and concerns security of review a account into took that rule interim an adopt

 facilities certain to rule the apply to opted had Counsel General s’Commission the therefore; ingshear parole at present be to representatives permitting to prior facilities contract federal-non the of

 reserved usually is that test” relationship rational “a applied court The .basis case-by-case a on

 resource about concerned was Commission the ecause]b “[that reasoned and litigation prison for

 the ,representatives of restriction the on comments received and facilities relevant the at constraints

18“‘.made choice the and found facts the between connection rational ‘required the reveals record

 after holdings litigation correctional of number a to applied been has test” relationship rational “The

 prison a that held Court Supreme .S.U the where 19)1987 (Safley .v Turner in enunciated first was it

 rational a bear must regulation or rule the that is Safley in issue key The .interests penological matelegiti to related reasonably is it if valid is rights constitutional s’inmate an restricts which regulation
Hearings Release Parole at Rights’ Inmates

14 CHAPTER

261

 be should factors four that determined Court The ,interest penological legitimate a to relationship

:“reasonableness “determining when affirmed

 interest governmental legitimate a and regulation the between connection rational ,valid a there Is■ 

?it justify to forth put

?inmates to available right constitutional the exercising of means alternative there Are■ 

 the accommodating that impact the determine to considered resources of allocation the Was■ 

 ?users its and facility the on have will right asserted s’inmate

?exist regulation restricting the to alternatives current any Do■ 

 State .B

 release parole a at counsel to right the afforded be should inmate state a whether of question The

 been traditionally has states most in counsel of role The .question state a basically remains hearing

 the to arguments written or oral making or ,hearing the before prisoner the advising to restricted

 release the at counsel of assistance to right constitutional no is there determined have grounds alconstitution on issue the considered have that courts ,past the In .20hearing the after board parole

 require not does Constitution the that held have Appeals of Courts Circuit Federal Several .21hearing

 require not does ,22decision hearing board parole a from appeal civil a in counsel of appointment the

 counsel of assistance the require not does and ,23hearings parole attend to permitted be counsel that

.24proceeding application parole a at

 s’state a if ,However .rules and statutes s’state each by governed are hearings release parole State

 does statute the and ,hearing release parole a at representative a have to inmate an permit laws

 attorney an have may inmate an then ,representatives of class a as attorneys exclude expressly not

 act simply would attorney The .25representative legal s’inmate the as act cannot counsel but ,present

 .behalf s’inmate the on act to allowed be would representative other any as

 s’inmate state Texas a that found Appeals of Court Federal Circuit Fifth the ,26Skelton .v Cruz In

 by defeated was hearing application parole a at counsel appointed to entitled was he that argument

 question the answer to attempted court The .proceedings application parole at counsel of pearanceap the require not did process due that ruled had court the which in 27cases two in holdings prior the

 indigent an to apply would 28Amendment Fourteenth the of Clause Protection Equal the whether of

 After .hearing revocation-non a in state the by appointed be counsel that requested had who inmate

 policy s’board the that find court the could nowhere ,rules and statutes parole Texas the considering

 the require to interpreted be hearing application an at representatives have to inmates allowing of

 in ruling s’Circuit Seventh the to looked also court The .inmate indigent an to counsel appoint to state

 Equal the under question this considered court Ganz The .Illinois in board parole a before him sentrepre to counsel have he that requested had also inmate indigent an which in 29Bensinger .v Ganz

 on bear not would presence s’lawyer a ,hearings release parole at that held and Clause Protection

 without inmates indigent ,cases two these In .inmate any for hearing the of demeanor effective the

 thus ,hearings release or application parole the at treatment differential to subject not were lawyers

.baseless were claims protection equal their

CRITERIA RELEASE .II

 in considered be to is information what to as latitude wide granted generally are officials Parole

 time of record) 1 (:rely may decisions release which on factors several are There .decisions release

 behavior institutional of history) 3 (,reoffending of risk to related assessments needs/risk) 2 (,served

 ,any if ,recommendations) 7 (and ,plan transition and release a) 6 (,treatment and participation grampro of record s’inmate an) 5 (,families their or/and victims of input the) 4 (,records disciplinary and
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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262

 and federal between vary decisions release for Criteria .30prosecutor or judge sentencing the from

 the of knowledge working current have must officials Parole .states between and ,jurisdictions state

 rules or/and statutes in published are criteria These .jurisdictions their for developed criteria release

 Most .hearing release parole a in used be will criteria of types what know to entitled are inmates and

 of them advise to inmates to available access printed other or handbooks inmate have jurisdictions

 .parole deny or grant to whether in on relied be will that factors the

 must authority parole the) 1 (:parole in interest liberty cognizable a created has statute a Where

 process Due .32hearing a at parole of denial a to lead may which files institutional their in formationin any of advised be must inmates) 2 (and ,31inmates to available easily criteria release its make

 the on bear may that file the in inaccuracies any rebut to opportunity an given be they that requires

 be will decision s’commission or board parole the that risk the lessen to order in decision parole

.34file the to access s’inmate an for provision constitutional no is there ,parole in interest liberty lishedestab statutorily no is there where jurisdictions in ,contrast By .33information erroneous on based

 Federal .A

 to whether determining in uses Commission Parole .S.U the that criteria the out sets statute Federal

.36capricious and arbitrary not are decisions that assurance some offers and ,examiners and sionerscommis s’USPC the to guide a provides criteria the of Publication .35parolee prospective a release

 discretion the narrowing toward steps guidelines USPC the following and criteria the using Correctly

.37authority discretionary its of it stripping without USPC the of

 in annotations extensive with covered are and statute by out set are release for criteria USPC The

2011.39 1, November on expire to set is that statute the under codified also are criteria The .38cialsoffi parole federal by use for intended) manual) (2010 (Manual Procedures and Rule USPC the

 in considered be can that information additional about explanations includes manual the ,However

 by submitted information including (prisoner the concerning information relevant additional such ationconsider into taken be also shall here]t “[that provision codified s’statute the under decisions release

40“.available reasonably be may as) prisoner the

 inmates federal certain to pertain that) 1976 (4206 § .C.S.U 18 in determination parole for criteria The

:follows as are 1987 1, November before committed were offenses whose

 which to institutions or institution the of rules the observed substantially has prisoner eligible an If)a(

:determines ,prisoner the of characteristics and history the and offense the of escircumstanc and nature the of consideration upon ,Commission the if and ,confined been has he

 the for disrespect promote or offense his of seriousness the depreciate not would release that) 1(

 and; law

 ;welfare public the jeopardize not would release that) 2(

.released be shall prisoner such ,)1)(a(4203 section to pursuant Commission the by gatedpromul guidelines to pursuant and ,section this of) c (and) b (subsections of provisions the to subject

 not determination its of notice written a with prisoner eligible the furnish shall Commission The)b(

.denial such for reasons the particularity with state shall notice such denied is parole If .ingproceed determination parole the of date the after ,holidays excluding ,days one-twenty than later

 to referred guidelines the notwithstanding parole on release deny or grant may Commission The) c(

 That ,Provided :doing so for cause good is there determines it if section this of) a (subsection in

 ,determination its for reasons the particularity with stating notice written furnished is prisoner the

.upon relied information the of summary a including
Hearings Release Parole at Rights’ Inmates

14 CHAPTER

263

 this under released earlier not is who ,longer or years five of sentence a serving ,prisoner Any)d(

 served having after parole on released be shall ,law of provision applicable other any or section

 consecutive each of years thirty serving after or ,terms or term consecutive each of thirds-two

 ,Provided :earlier is whichever ,term life any including years five-forty than more of terms or term

.crime local or ,State ,Federal any commit will he that typrobabili reasonable a is there that or regulations and rules institution violated frequently or ouslyseri has he that determines it if prisoner such release not shall Commission the That ,however

:states manual the of 2.18 Section

 has prisoner the that determine must Commission the ,parole of grant a to prerequisites As .sionCommis Parole .S.U the of discretion the in rests prisoner eligible an to parole of granting The

 ;confined been has he which in institutions or institution the of rules the observed substantially

 and history the and offense the of circumstances and nature the of consideration upon and

 seriousness the depreciate not would release that determine must ,prisoner the of characteristics

 public the jeopardize not would release that and ,law the for disrespect promote or offense his of

 and live would prisoner the ,released if ,that probability reasonable a is there that .,e.i (welfare

.41(parole his of conditions the or law the violating without liberty at remain

 the of jurisdiction the under are who offenders of categories special the for exist criteria release erOth 1987. 1, November after or on occurred offenses whose inmates certain for effective is rule This

.manual the in forth set are criteria these and) offenders Code DC .,g.e (USPC

 federal the in release determine to used information the and criteria release of areas the in Liability

 under liable held be cannot USPC The .USPC the of powers discretionary the on focuses system

 .function discretionary its of exercise the in made decision a for 42)FTCA (Act Claims Tort Federal the

.43ignored are process making decision the of steps required when exist may liability FTCA ,However

 by protected is USPC the because 1983 § under sued be cannot officials parole federal that Recall

 who inmates for redress of avenues few a only leaves This .44immunity sovereign under claims such

 his filed inmate the ,Settles in ,instance For .official parole federal a against action of cause a file

 Procedure Administrative Federal the and Amendment Sixth the of violation to pursuant complaint

 1983. § under sue to ingstand had he though even ,claim APA the with along ,dismissed were claims 1983 § His .45)APA (Act

 at suggests ,Parole of Board States United former the involving case a ,46States United .v Payton

 .release of conditions the fashioning in negligence and release negligent :liability for bases two least

 board parole federal the furnish to duty a have to found were officers probation federal ,Payton In

 ,interest public with incompatible not wherever ,as well as ,prisoners concerning information with

 .disposition parole to respect with recommendations and views their

 board parole state and examiners and commissioners federal that indicates Payton in ruling This

 ‘inmates of them inform would that reports pertinent read and acquire to duty a have may officials

 was board parole the whether on turn would this as such case a in liability The .propensities violent

 Board .S.U the that found court Payton The .function nondiscretionary a or discretionary a performing

 court the by construed were board the against case the of facts the because liability no had Parole of

 .law under liable not was board the which for acts discretionary involve to

 scope the outside action an or faith bad of showing a require may discretion of abuse for Liability

 the 48Act Corrections Youth Federal the of context the in ,example For .47authority s’USPC the of

 reasonably might programs rehabilitative to response s’inmate the consider to failure s’Commission

.49discretion of abuse constitute
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

14 CHAPTER

264

 State .B

 in use officials parole criteria what know to entitled is prisoner state a whether to as question The

 for used criteria the in differ states because law state of issue an is determinations release making

 s’official parole the in criteria release The .released be” shall “or” may “inmate an when determining

 this with concerned inmates by filed be will that lawsuit of types the dictate likely will jurisdiction

 of cause a within brought are criteria release involving lawsuits inmate state and federal Most .issue

 violation a ,Additionally .parole of denial of explanations or/and decisions release concerning action

 basis the be can ,USPC the against cases in as ,Constitution .S.U the of Clause Facto Post Ex the of

 the since changed have criteria release governing regulations or ,rules ,statutes state if lawsuit a for

 (.infra discussed are claims facto post Ex (.sentence or offense s’inmate an of date

 the ,past the in courts the to brought were criteria release parole state regarding issues the Where

 of publication require not did that state a of jurisdiction the under usually was parolee prospective

 based usually were lawsuits’ inmates in criteria release involving Allegations .criteria release the

 mandates process due that claiming in unsuccessful usually are Inmates .law of process due in

 the ,example For .published be decision release its making in authority an by used criteria the that

 parole deciding for standards s’board parole the held Circuit Fifth the for Appeals of Court Federal

 The .50interest an such not is parole on release of expectation the and ,interest liberty protected allyconstitution a of denial the in results action arbitrary where only concern judicial of are applications

 facts specific of statement the” until and unless “held Circuit Second the for Appeals of Court Federal

 parole the in inmates protect to inadequate prove prisoners to given parole of denial for reasons and

.51criteria release its reveal to board parole the compel not would court the ,process making -decision

 not does right constitutional federal a that determined have Appeals of Courts Federal Although

 by granted rights to restricted not is state a that is principle basic The .constitution state a under wiseother finding from court a prevent not does this ,published be to criteria release parole state require

 release publish which States .constitution own its under its to rights extending in Constitution .S.U the

 .require to declined have courts federal the what providing are criteria

 PAROLE OF DENIAL FOR EXPLANATION .III

 give to officials parole requires that process due of requirement constitutional specific no is There

 of area an remains this However .denial parole for) s(reason particular the of explanations inmates

 issue an rarely is this ,matter practical a As .discussion deserves it ,hence; litigation considerable

 for explanations written give routinely jurisdictions parole most that shown have surveys because

 theory process due a on based been have cases some in complaints Prisoner .52release of denials

.53act procedure administrative an on and

 parole in interest liberty a if) 1 (are boards parole state by parole of denial for guidelines general The

 requirement process due no is there ,created is parole in interest liberty no if) 2 (or ,denial for sonsrea the of statement written a providing by process due satisfy to required is board parole a ,exists

 notice written give must USPC The .all at documentation written with inmate an provide board a that

.54denied was parole why reasons particular and specific the states which inmate the to denial of

 know to entitled are inmates that argument the rejected Court Supreme .S.U the ,Greenholtz In

 on comment not did Court the although ,release denying in used board parole a that evidence the

 had board paroled the that reasons the of inmates advising parsimoniously of practice s’Nebraska

 process due procedural a was advisement this that expressed Court the ,fact In .release denied

 .hearing formal a of absence the in safeguard

 of Court Circuit Second Federal the parole of denial involving appeal an in ,Greenholtz Following

 that determined Appeals
Hearings Release Parole at Rights’ Inmates

14 CHAPTER

265

 to sufficient be should reasons of statement a requirements process due minimum satisfy To

 impermissible an for denied been has parole whether determine to body reviewing a enable

 ,required not are fact of findings detailed ,purpose essential this For .all at reason no for or reason

 furnishes it and factors relevant all of consideration upon based is decision s’Board the provided

 s’Board the which upon facts essential the and ... decision the for grounds the both inmate the to

.55based are inferences

 in Circuit Seventh the by adopted later was parole of denial to regard with process due of view This

 :stated Court Circuit Seventh The .56jurisdiction its in appeals two least at

 release parole a to applies Clause Process Due the when even ,that clear makes Greenholtz

 on interview his at or file s’inmate the in’ evidence particular the specify to Board Parole the quiresre that evolved far thus have they as concepts process due the in nothing ‘is there ,determination

.57release conditional for ready not is inmate an that determination discretionary the rests it which

 why to as statement summary a or reasons of statement a with inmate the provide to enough is It

.denied was parole

 governs that law of body the is law Administrative .law administrative in based procedures istrativeadmin accompanying its and parole of denial concerning action of causes brought have Inmates

 An .actions their and agencies administrative of reviewability judicial and ,procedures ,powers the

 applicable generally of set a of body legislative a by codification a is act procedures administrative

 1946. in 58Act Procedures Administrative federal the enacted originally Congress .areas these in rules

.APA federal the after it modeled have and APA federal the of form some have states Most

 a when or denial of explanation an for provision no is there where filed are action of causes ,Usually

 APA an ,Generally .59exhausted are remedies other after contested is denial for explanation or denial

 ,rules ,statutes s’agency an where decisions agency administrative of review judicial for provides

 not are officials parole against cases Most .issues procedural certain address to fail regulations or

.claims 1983 § or/and constitutional on rely cases the ,Instead .APA an under brought

 Federal .A

 out carry to ability its ,powers parole its regarding regulations and rules promulgates USPC The

 system parole USPC The .60statutes parole federal of purposes the and ,policy parole federal the

 Procedures and Rules its in decisions release parole its of appeal and reconsideration includes

 1974, In .APA Federal the of provisions to subject are USPC the of actions specific Some .Manual

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

 .Parole of Board the to applicable not was APA the that been had view tionaltradi The .61parole for application his refusing for reasons of statement a appellant the give to Board

 the of creation the with interest heightened of was level federal the at APA the of relevance The

 govern to continue which ,Parole of Board .S.U the governing statutes prior the Under 1984. in USPC

 personal a ,denied is parole if that provide) g(4208 and 4206 §§ .C.S.U 18 2011, until USPC the

 determination that of notice ,denied is parole if that provides) b(4206 § .C.S.U 18 ,Furthermore .siblefea if ,denial for reasons the explain to proceedings the of conclusion the at held be shall conference

.hearing parole the of days 21 within denial such for reasons the particularity with state shall

states 20 .p ,)c(2.13) § x2010 (Rule USPC ,Currently

 by recommended be to decision the discuss shall examiner the ,hearing the of conclusion the At

 the of notice Written .made be can recommendation a before deliberation further requires that sueis complex a of circumstance extraordinary the in except ,therefor reasons the and examiner the

 ,hearing the of date the of days 21 within prisoner the to transmitted or mailed be shall decision
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

14 CHAPTER

266

 modifies or (date release a establishes initially Commission the Whenever .emergencies in except

.therefor reasons the writing in receive also shall prisoner the ,)thereafter date release the

 Procedures and Rules the in follows as stated are denial for reasons of provisions for guidelines The

21: .p 2.13.-04, at Manual

 a denying Action of Notices all on typed be will format guideline appropriate the following Reasons

 reasons the of repetition ,However .date parole effective or presumptive a granting or date parole

 release-pre a of result a as granted is date effective an when) a (required not is given already

 and; changed been not has release of date the and order date presumptive previous a of review

 .made is decision previous the in change no where Action of Notice other any on) b(

 State .B

 district federal a ,parole state in interest liberty a of finding the by required is process due Where

 of statement a furnish to Board Review Prisoner the required process due that ruled Illinois in court

 reviewing a enable to enough sufficient be to have would statement The .62denial parole for reasons

 Illinois The .63reason impermissible an for denied been had parole the whether determine to body

 for reasons of statement a “...that ruling Appeals of Court Circuit Seventh Federal a followed court

 case Circuit Ninth a ,65Procunier .v Sellars In 64”.determinations release parole of context the in cesspro due by required protections procedural minimum the among included is parole of denial the

 and parole for apply to right a has prisoner a that found court the ,laws parole s’California involving

 statement a to right the has inmate The .board parole the from request the of consideration receive

 specified court state Virginia West A .denial the of reconsideration to and denied was parole why of

 a of use But .66reasons written” mechanistic “than more to entitled was parole denied person a that

 on elaboration of instead ,denial parole for reasons the of inmate state Illinois an inform to checklist

.67court district federal a by proper deemed was ,denial for reasons the

 ,parole of denial of explanation some to entitled are inmates state ,parole in interest liberty a is there If

 the of 69statement written a to 68explanation summary contemporaneous a from range can this but

 s’board parole A .process due for sufficed denial for reason main the was history criminal his that ingstat board parole Virginia the from inmate state a to letter a ,70Angelone .v Vann In .denial for reasons

 and nature the of seriousness the to due parole denied been has inmate an that statement a of basis

.71jurisdictions some in denial for evidence sufficient be may crime the of circumstance the

 on rulings federal ,issue in is statutes state of interpretation the where ,APA s’state a to regard With

 the unlike ,Moreover .value precedential binding no but ,influence some have statutes federal related

 familiar be to best is It .decisions parole for exemption specific a have laws state some ,APA Federal

 s’official parole a to pertinent is that guidance for precedent law case with and APA s’state the with

 .jurisdiction local or state

 independent totally a not is required is denial for reasons of statement a whether ,APA state a Under

 :factors three of one on dependent is but issue

 administrative state a ,within exclusion or inclusion legislative or ,of interpretation court State■ 

.act procedure

or process due concerning constitution s’state the of interpretation court State■ 

 .agency administrative an of policy The■ 

 an to right no is there that is presumption the ,Act Procedure Administrative state a without states In

 oral provide do states of majority the ,above mentioned as ,However .decision parole a of explanation

.parole of denial for inmates to explanations written or
Hearings Release Parole at Rights’ Inmates

14 CHAPTER

267

 LITIGATION OF AREAS OTHER .IV

 briefly are topics These .officials parole and inmates involving areas litigious other several are There

 bringing for have inmates reasons of multitude the of readers apprise to order in here discussed

 of type the on depends defendants for immunity of availability The .them against action of causes

 cases such but ,defenses immunity involve not do section this in discussed cases the of Some .case

 .immunity involving litigation to lead could that issues legal the on instructive are

Release to Prior Parole of Rescission .A

 .set been has date release a and granted been has it after parole rescind may authorities Parole

 in factors several are There .72parole of rescission a support to evidence some be only need There

 was parole that indicates that Evidence .factor common a is granted is parole after occurring ductmiscon institutional of evidence ,instance For .parole of grant s’inmate an rescind to determinations

.factor a be also may error in granted

 parole in interest liberty a ,inmates federal involving cases in that held have courts circuit Federal

 rescission require not does process due but ,granted been has parole once established been has

 ,inmates state involving cases In .73hearings revocation as standard same the to held be to hearings

 process due with accordance in conducted be hearings rescission that required have states some

 resolution the to as states among consensus little is there ,However .hearings revocation in afforded

 where states in required is hearing rescission no that ruled has Court Supreme The .74matter this of

.75parole in interest liberty no is there

Parole of Conditions .B

 permit courts ,decisions release in discretion broad officials parole allowed have courts as Just

 jurisdictions parole of number A .76parole of conditions fashioning in latitude wide fairly officials parole

 substance ,monitoring electronic .,g.e (offenders of classes particular for conditions special ulatoryreg or statutory permit states Some .inmates all to applicable are that conditions standardized have

 for restrictions residential and travel or/and ,treatment and registration offender sex ,treatment abuse

.(offenders certain

 condition the whether) 1 (:issues several on turn may conditions parole contested involving Cases

 the that vague so or broad too is condition the whether) 2 (,inmate the to nexus appropriate an has

 requirement the whether) 3 (or/and ,it by abide to how understand or it comprehend cannot parolee

 ,clear be must itself parole of purposes and goals the and offender the to relationship its and ,ditioncon the of purpose the that means nexus A .77met be possibly or reasonably cannot condition the of

.78connected legitimately and ,broad overly not

 because conditions parole by prohibited be may citizens ordinary to available are that rights Some

 fundamental a violate that Conditions .79example such one are parolees on restrictions Travel .visionsuper on are they while General Attorney s’state a or .S.U the of custody the under remain parolees

 and events religious certain attending from prohibited was parolee Kansas a where violation tionalconstitu a found court state Kansas a ,instance For .permitted not generally are right constitutional

 Supreme .S.U the ,Freeman .v Arciniega In .80affiliation religious a establishing from prohibited was

 wide had board parole federal the although that found Court Supreme The .convicts-ex with sociateas to parolee a forbade that condition parole a uphold to decision s’Circuit Ninth the reversed Court

 incidental from restricted be not could parolee the ,parole of conditions set to authority and discretion

.81employment legitimate during convicts-ex with contacts job-the-on

 .offenders sex for conditions of that is conditions release of areas litigious recently most the of One

 conditions special surrounding issues the of many on divided are courts federal lower and State
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

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268

 are Courts .histories criminal their in offense sex a have who those on officials parole by placed

 but ,including conditions and criteria release offender sex of contours constitutional the exploring

 must officials Parole .monitoring electronic and ,registration ,treatment offender sex to limited not

 Parole .offenders sex of release the to regard with regulations and laws current the of cognizant be

 inmates for conditions release the affect may area this in law case because vigilant be must officials

 with charged not were they if even ,lives their during time any at offense sex a committed have who

 .offense the of convicted or

83Mathews the applied Appeals of Court Circuit Fifth the 82)2010 (,Livingston .v Meza in ,example For

 permitted that Paroles and Pardons of Board Texas the of regulations reviewing in test balancing

 who offenders for parole of conditions treatment and registration offender sex add to officials parole

 contained histories criminal their in offenses whose but ,offense sex a of convicted been not had

 interest s’State the weighing when that held Court Circuit Fifth The .nature sexual a of element an

 s’State the using when occur may that error of risk high the with costs and resources controlling in

 registration offender sex from free being in interest liberty s’Meza ,protections process due current

 due following the Meza afford must Texas of State the that held court The .prevailed treatment and

 a as imposed be may conditions offender sex that notice written) 1 “(:protections procedural process

 Meza against presented being evidence the of disclosure) 2; (supervision mandatory his of condition

 at hearing a) 3; (defense a prepare and him against asserted facts the marshal to him enable to

 ;witnesses call and ,evidence documentary present ,person in heard be to permitted is Meza which

 impartial an) 5; (shown is cause good unless ,witnesses examine-cross and confront to right the) 4(

 the and on relied evidence the to as factfinder the by statement written a) 6 (and; maker decision

84“.supervision mandatory his to conditions offender sex attached it reasons

 federal the 4248, § .C.S.U 18 upheld Court Supreme States United the 85)2010 (Comstock .v .S.U In

 district federal a by commitment civil seek to Justice of Department .S.U the permits that statute

 on case this decided Court The .Prisons of Bureau Federal the of custody the from released be wiseother would they date the beyond inmates federal dangerous sexually ,ill mentally certain for court

 decide not did Court The .Amendment Tenth the of Clause Proper and Necessary the of grounds the

 due substantive or procedural ,protection equal denies application its or statute the that claim any

 continue can law federal the contesting plaintiffs therefore; rights constitutional other any or ,process

 state similar regarding 86cases considered previously had Court The .bases these on claims make to

 commitment civil governing statute Kansas the that held and Clause Process Due the under statutes

 the ,Crane .v Kansas In .process due substantive of requirements the met offenders sex certain of

 of part made not were officials parole Although .disorders mental volitional-non or behaviors tionalvoli for committed be should offenders whether of definitions over state the with disagreed Court

 civil for recommendations making in role important an have may officials the ,decisions court these

.release s’inmate an after commitment

Claims Facto Post Ex .C

 Article of 10 and 9 Sections of Clauses Facto Post Ex the under inmates by filed action of Causes

 regulations and rules administrative and Statutes .uncommon not are Constitution .S.U the of 1

 legislative which in versions newer by amended or replaced and repealed are statutes Many .optedad first were they when were they as same the remain ,part most the for ,not do parole regarding

 regulation or statute parole controlling the ,Generally .evolved has language statutory and purpose

 which for offense the of date the on effect in is that one the is inmate specific a to applicable is that

 at eligible-parole is inmate an If .revocation or ,rescission ,release for considered being is she or he

 eligibility parole or parole if even ,future the in eligible be will she or he then ,offense the of time the

 lawmakers forbids Clauses Facto Post Ex The .abolished is or ,regulation or statute by altered was

 laws retroactive against provisions The .laws criminal to relation with legislation retroactive pass to
Hearings Release Parole at Rights’ Inmates

14 CHAPTER

269

 punishment the increase changes such if only but ,procedures and laws parole certain to apply also

facto post ex under sued been have officials Parole .offense eligible-parole current s’inmate the for

.cases these of most in granted is immunity absolute but ,claims

 .Clause Facto Post Ex s’Constitution .S.U the of violative was rule parole Georgia a of application tiveretroac a whether of question the considered ,87)2000 (Jones .v Garner in ,Court Supreme .S.U The

 state Georgia a from escaped had but ,murder for sentence life eligible-parole a serving was Jones

 second his During .sentence life another received he which for murder another committed and prison

 for Jones consider to required statutorily was Paroles and Pardons of Board s’State the ,term life

 parole denied been had Jones .thereafter years three every then and ,years seven after initially parole

 eight every once reconsideration parole allow to rule its amended Board the before times several

 was application retroactive s’rule the that determined Appeals of Court Circuit Eleventh The .years

 did rule the of application retroactive such that held Court Supreme The .violation facto post ex an

 whether is element key the that found Court The .Clause Facto Post Ex the violate necessarily not

 the increasing of risk sufficient a created reconsiderations parole between intervals of extension the

 due have must tates]s “[that recognized Court The .committed Jones that crimes the for punishment

 and confinement with associated problems addressing and procedure parole formulating in flexibility

88“.release

 parole the that contending claim 1983 § a brought prisoner state a ,case Circuit Tenth similar In

 of violation a was) SATP (program treatment abuse sexual a complete he that requirement s’board

 named not was board parole The .program the in participate to refused he because release his niedde had board parole the that complained inmate The .89Clauses Facto Post Ex and Process Due the

 grant a affect could Corrections of Secretary the only that stated law Kansas because defendant a as

 the completed satisfactorily has inmate the that board parole the to writing in stating by parole of

 inmate the that inmate the and Secretary the between agreement written a to pursuant) s(program

 Post Ex the of violation a show to order In .release obtain to order in programs required the complete

 crime the of definition the ,Thus .crime original the than punishment greater 90imposes that law inalcrim or penal retroactive to subjected been has she or he that show to has inmate an ,Clause Facto

 required that law The .91punishment of increase an in result must law new the or ,changed be must

 .convicted was he after passed been had agreement written the of terms the satisfy inmate the that

 be not could law new the of provisions the that determined had Appeals of Court state Kansas The

 three in noted had board parole The .Clause Facto Post Ex the of violation in retroactively applied

 release his denied but ,SATP the in participated not had inmate the that hearings release separate

 his that evidence sufficient provided not had inmate the that concluded court The .grounds other on

 .SATP the in participate not did he that fact the on solely based been had denial parole

 an of claim 1983 § the considered Appeals of Court Circuit Eighth the ,92Thompson .v Nolan In

 eligible-parole a serving was inmate The .Parole and Probation of Board Missouri the against inmate

 provided offense his of time the at effect in law Missouri The .murder and kidnapping for term life

 ,law new A .planning or information additional request or ,years five to up of continuance or backset a consider ,consideration parole further deny could board parole the ,denied was parole if that

 at hearings reconsideration schedule to discretion s’board the eliminated ,conviction his after passed

 repeatedly board the ,years 20 of period a over hearings release At .years three than less of intervals

 the of” seriousness the depreciate “would it that was denial for reason the stated and parole denied

 the increasing of risk a created law new the that argued inmate The .circumstances its and crime

 application retroactive whether of question the that reasoned court The .incarceration his of length

 ‘degree of matter a “‘was punishment s’inmate the increasing of risk sufficient a created law this of

 affirmed court circuit The 93”.system parole entire the of context the within considered be must and

 the of scheduling s’board the because claim facto post ex inmates the of dismissal s’court lower the

 a create not did ,law new the by required as ,intervals year-three at hearings reconsideration s’inmate

 .incarceration his of length the increasing of risk sufficient
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

14 CHAPTER

270

SUMMARY

 release parole in rights constitutional minimal and diminished have inmates that holds law Case

 although ,counsel to right constitutional a have not do they ,hearings release parole In .hearings

 be to right constitutional no have Inmates .policy agency or law state by conferred be may right the

 agency or law state by recognized be also may right that ,however; criteria release the of informed

 for explanation an inmates provide officials parole requiring right constitutional no is There .policy

 or feedback contemporaneous inmates give routinely fact in jurisdictions most but ,parole of denial

.explanation written a

NOTES

.(1973) 1756 .Ct .S 93; 778 .S.U 411 ,Scarpelli .v Gagnon 1.

 prehearing securing from prisoners prevent could system correctional any whether doubtful is It 2.

 .(1977) 828 817, .S.U 430 ,Smith .v Bounds See .assistance legal

.(1976) 319 .S.U 424 3.

 .(1976) 4201-4218 §§ .C.S.U 18 4.

.(1976) (1)(d(4208 .Sec .C.S.U 18 5.

.Code .S.U the throughout tionssec various at and 3556–3551 §§ .C.S.U 18 in codified] [1984 [1987 .Stat 98 98-473, .No .L .Pub 6.

.([4201-4218 §§ .A.C.S.U 18 repealing) [1984 (2027 1837, .Stat 98 ,)5)(a(218 § 98-473 .No .L .Pub (7.

 ;parole for eligible are who 1987 1, November to prior offenses committed who offenders federal for tyresponsibili and jurisdiction retains still USPC the (/uspc/gov.justice.www://http at website] USPC terhereinaf [s’Commission Parole States United ,Justice of Department States United generally See 8.

 certain; offenders Justice Military of Code Uniform; offenders Code Columbia of District certain

 Federal the in placed are who parolees and probationers state and; cases treaty-transfer in offenders

.(Program Protection Witness

.(2008) 3013 Stat 122 110-312, .No .L .Pub 9.

.(2010) 2.13 § Manual Procedures and Rules USPC 84, note infra See 10.

.Id 11.

.Id 12.

.Id 13.

.Id 14.

.jurisdiction s’USPC the under offenders of classes varied the for 54 note supra See 15.

1098. d.3F 429 16.

1101. at .Id 17.

 quoting and) 1974 (281 .S.U 419 .,Sys Freight Best.-Ark .v .Inc .,Transp Bowman citing 1109, at .Id 18.

.(1962) 168 156, .S.U 371 ,States United .v .Inc ,Lines Truck Burlington

78. .S.U 482 19.

 499 497, .R.L Iowa 54 ,Hearings Release Parole in Counsel to Right The :Process Due ,Comment 20.

 .(1968)
Hearings Release Parole at Rights’ Inmates

14 CHAPTER

271

 499. at .Id 21.

 Pardons of .Bd Dakota South .v Bergee also See .)1973 .Cir th7 (88 d.2F 480 ,Bensinger .v Ganz 22.

.(2000 .D.S (636 d.2W.N 608 ,Paroles and

.(1977) 941 .S.U 430 ,denied .cert ,)1976 .Cir d2 (82 d.2F 544 ,Gates .v Holup 23.

.(1971) 979 .S.U 404 ,denied .cert ,)1971 .Cir th5 (1379 d.2F 446 ,Clark .v Buchanan 24.

.(2000) 675 d2 .W.N 604 ,Board Parole Michigan .v Francosi .,g.e See 25.

.(1976 .Cir th5 (86 d.2F 543 26.

70. note supra Buchanan); 1974 .Cir th5 (32 d.2F 505 ,Whiteside .v Cook See 27.

 protection equal “the defines) 2009 (.ed th9 ,Dictionary Law s’Black 1. § XIV amend .Const .S.U 28.

 or persons situated similarly give to states the requiring provision Amendment th14 “a as” clause

 of class the be would inmates indigent the cases these In” .law the under treatment similar classes

 for appointed not was attorney an because violated was clause the that alleging were who persons

.(.hearing release or application parole a at them

 68. note Supra 29.

 38. .p 10, note supra See 30.

.(1977 .Cir th4 (784 d2 .F 569 ,Shields .v Franklin 31.

.(1981 .Cir th8 (697 d.2F 661 ,Parole and Probation of .Bd Missouri .v Williams 32.

.(1982 .Cir th7 (499 d.2F 694 .,Bd Review Prisoner .v Walker 33.

(1980 .Cir th10 (172 d.2F 624 ,Parole Adult of .Bd State Colorado .v Schuemann 34.

.(2011 1, November until effective) (1976 (4206 § C.S.U 18 35.

 111 93, .J Marshall John 10 ,Assessment Current A :Granting Parole in Process Due ,Merritt .F 36.

.(1976)

113. at .Id 37.

/uspc/gov.justice.www://http at available 30-34 .pp Manual Procedures and Rules USPC See 38.

 at website USPC the from (2010 30, June updated last; pdf111507.manual-uspc/procedures_rules

 .(htm.rulesmanual/procedures_rules/uspc/gov.justice.www://http

4206-4207. §§ .C.S.U 18 39.

4207. § at .Id 40.

30. .p at 82 note Supra 41.

.(2010) 2671-2680 ,(b(1346 §§ .C.S.U 28 42.

 .(1982 .Cir th5 (475 d.2F 679 ,States United .v Payton 43.

 under acting’ person ‘a against suit permits 1983 Section (“1104 1103, at 62 note supra ,Settles 44.

 .(“law federal of color under ingact officials federal to apply not does 1983 Section but” ,...law Columbia of District or State of color

 ,Dictionary Law s’Black); ((1946 in Congress by enacted originally) (2010 (500-596 §§ .C.S.U 5 45.

 A 1. .Act Procedure Administrative “:follows as Act Procedure Administrative the defines) 2009 (.ed th9

 .adjudication and rulemaking in followed be to procedures and practices establishing statute federal

 present to right the as such protections process-due basic citizens give to designed was Act The

((“.statute state similar A 2. .officer hearing independent an by heard be to and evidence
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

14 CHAPTER

272

89. note Supra 46.

.(1984 .Cir th6 (320 d.2F 736 ,Keller .v Adams 47.

 was Act The .justice criminal of administration the improve to and offenders youthful of habilitationre and treatment the for system a provide to enacted was Act Corrections Youth Federal The 48.

.[5005 § USCS 18 [1984. in repealed

93. note Supra 49.

.(1978 .Cir th5 (1016 d.2F 566 ,Wells .v Johnson 50.

.(1975 .Cir d2 (544 540, d.2F 525 ,Regan .v Haymes 51.

 Their of Description Detailed A :States United the in Systems Parole ,Hanrahan .K and Leary’O .V 52.

 .(1976 .ed d3 (44 .p ,Procedures and Structure

 62. note Supra 53.

2.20.06. – (c) & (b (2.20-01 §80-90 .p 84, note supra also See .)c (and) b (4206 § .C.S.U 18 54.

 934 925, d.2F 500 ,Parole of Board State York New of Chairman .v Johnson .rel ex States United 55.

.(1974) 1015 .S.U 419 moot as vacated ,)1974 Cir d2(

,denied .cert) 1975 .Cir th7 (797 at d.2F 525 ,supra ,Wolff .v Richerson .rel ex States United See 56.

79. note supra Walker); 1976 (914 .S.U 425

27. note Supra 57.

 91. note Supra 58.

 .v Ditter); 2009 (33 d.3W.S 292 ,Parole and Probation of Board Missouri .v Ladd .,g.e See 59.

.(2002) 43 d2 .W.N 655 ,Parole of Board Nebraska

 .(.seq et 4201 §§ .C.S.U 18 to referring) (1)(a(4203 § .C.S.U 18; 76 § Parole and Pardon d2 .Jur .A 59 60.

 Reno El ,Warden .v Fronczals ,also See .)1974 .Cir th7 (1337 d.2F 492 ,States United .v King 61.

.(1977 .Cir th10 (1219 d.2F 553 ,Reformatory

 .(1982 .Ill .D.N (213, .Supp .F 553 ,Irving .v Horton 62.

 .Id 63.

.(1982 .Cir th7 (1192 1185, d.2F 669 ,Board Pardon & Parole Illinois .v Scott .rel ex States United 64.

 34. note Supra 65.

 .(1982 .,Va .W (225 .d.2E.S 298 ,Dale .v Stanley 66.

.(1982 .Ill .D.S (1254 .Supp .F 528 ,Lane .v Partee 67.

.(1990 .Cir th5 (147 d2 .F 894 ,Spears .v Kindred 68.

 4 ,Underwood .v Poore); 1977 .Cir d2 (86 d.2F 550 ,Regan .v Zural ; 27 note supra Greenholtz 69.

99. note supra Richerson .rel ex .S.U); 2001 .Cir th4 (155 .Appx .Fed

.(1984 .Cir th8 (653 d.2F 750 ,Corrothers .v Parker generally also See); 1996 .Cir th4 (519 d3 .F 73 70.

(2010 .Va .D.E (115875 LEXIS .Dist .S.U 2010 ,Johnson .v Powell 71.

.(1988) 881 d.2P 755 ,Powell re In 72.

 924 d.2F 589 ,Parole of .Bd .S.U .v Christopher); 1978 .Cir d2 (1208 d.2F 584 ,McCall .v Drayton 73.

.(1978 .Cir th7(
Hearings Release Parole at Rights’ Inmates

14 CHAPTER

273

 .So 391 ,Commission Probation and Parole Florida .v .Inc ,Services Legal Institutional Florida); idaFlor) (1977 (366 d2 .So 354 ,Wainwright .v Demar); California) (1972 (1326 d.2P 503 ,Prewitt re In 74.

.(Washington) (1975 (334 d.2P 530 ,Burdman .v Monohan); 1980 .Dist st1 .App .Ct .Dist .Fla (247 d2

.(1981) 14 .S.U 454 ,Curen Van .v Jago 75.

.(1971) 4 .S.U 404 ,Freeman .v Arciniega .,g.e See 76.

 63. .p at 10 note Supra 77.

.(1978 .Cir th7 (924 d.2F 509 ,Parole of Board States United .v Christopher .,g.e See 78.

.(1983 .Cir th9 (921 d.2F 718 ,Harvey .v Bagley .,g.e See 79.

.(1990) 178 d.2P 796 ,Evans .v State 80.

 122. note Supra 81.

.(2010 .Cir th5 (392 d.3F 607 82.

 49. note Supra 83.

 412. at 128 note Supra 84.

.(2010) 1939 .Ct.S 130 , ___d.3F ___ 85.

.(2002) 407 .S.U 534 ,Crane .v Kansas); 1997 (356-358, 346, .S.U 521 ,Hendricks .v Kansas 86.

.(2000) 244 .S.U 529 87.

245. at .Id 88.

.(2002 .Cir th10 (946 d.3F 298 ,McKune .v Reed 89.

.(1986 .Cir th10 (267 d.2F 785 ,Meachum .v Dyke 90.

.(1998 .Cir th10 (1101 d.3F 158 ,Embry .v Fultz 91.

.(2008 .Cir th8 (983 d.3F 521 92.

252. & 250 244, .S.U 529 ,Jones .v Garner quoting .Id 93.

15 CHAPTER

 OFFICIALS PAROLE OF LIABILITY

 BY COMMITTED CRIMES FOR

OFFENDERS RELEASED

 INTRODUCTION

 LIABILITY NO IS RULE GENERAL THE .I

Exposure Liability Is There if Remedy Legislative .A

SUMMARY

 NOTES

275

Offenders Released by Committed Crimes for Officials Parole of Liability

15 CHAPTER

277

INTRODUCTION

 an is offense an commits subsequently who offender an of release the for liability’ officials Parole

 in litigated be to continue will and courts the of attention the drawn has that issue legal important

 to way free-error ,ideal] no “[,opinion Greenholtz the in stated Court Supreme .S.U the As .future the

 continue will and been has question whole the; developed been has decisions release parole make

 fact with combined factors psychological of analysis involving experimentation of subject the be to

 future predicting in decisionmakers parole actual the of experience practical the by guided evaluation

1“.behavior

 to as officials parole of liability possible on centered are realm this in issues legal The 

.2eesparol by committed ,nature predatory and violent a of particularly ,crimes for families their or victims

 the ,parole granting of consideration one is protection public because ,that deduces public The 

 against cases most that means This .occurred have not would injury the ,released been not had eeparol the if ,because public the of member a injures parolee a if liable held be should officials parole

.release negligent of claims on based are parolees by committed crimes for officials board parole

:claim negligence a of elements four prove to required are Plaintiffs

.plaintiff the to duty legal a owed defendant The■ 

.act to failure or act by duty that breached defendant The■ 

.breach the of result a as injury or harm recognizable suffered have must plaintiff The■ 

.injury the of cause proximate the been have must act s’defendant The■ 

 person a ,]specifically; [negligence with acted someone whether “determine to use courts that dardstan” person reasonable “a under construed be will defendant the by plaintiff the to owed duty The

 requires society that judgment and ,intelligence ,knowledge ,attention of degree the exercises who

3“.interests’ others of and own their of protection the for members its of

 more means cause Proximate 

4“.actor the on imposed be can liability that so ,consequence a in result to law in eredconsid is that omission or act an; liability in result to sufficient legally is that” cause “is cause mateProxi .act to failure or action s’defendant the” for but “occurred have not would injury the that than

 proper the within omissions or actions for immunity absolute to entitled are officials parole Generally

 perform officials parole because that held have Courts .authority and duties official their of scope

 .immunity absolute to entitled are officials ,judge a of those to comparable functions

 potential for argument an on rely or liability limited some find may they but ,officials parole for plesprinci immunity the honor will courts most that suggests release negligent of area the in law Case

 a Where .decisionmaking in discretion s’official parole a on focuses analyses Judicial .liability limited

 jeopardize and liability to exposed be may officials parole ,discretion abuse to or process makingdecision discretionary its in step required a omit to court a by seen is commission or board parole

 .immunity of claims their

 LIABILITY NO IS RULE GENERAL THE .I

,5State .v Santangelo In Claims of Court York New the in brought was release negligent for action an 

 woman a by) TRC (Committee Release Temporary Corrections of Department s’State the against

 parole a to unrelated was TRC The .release temporary on inmate an by assaulted sexually was who

 there that adduced court The .individuals dangerous known of depredations the from society tectingpro in interest public valid a is there that conceded court state The .claim release negligent a ersconsid court state a which in manner the to as instructive is case the however; commission or board

 that said court The .offenders reforming and rehabilitating in interest public recognized a exists also

 would release where prisoner a detaining avoid to care reasonable exercise to duty a had TRC the
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

15 CHAPTER

278

 In .harmful be to decision release a prove might events subsequent because solely justifiable be not

 into examination thorough a entail not did decision release the that reflected record the ,Santangelo

 TRC the by personally interviewed never was inmate The .character or background s’releasee the

 His .him to explained release of conditions the have to only committee the before appeared had and

 inmate the that recommendation s’officer the was it though even ,consulted not was officer parole

 .considered were reports psychological or psychiatric no ,Moreover .time additional serve

 claim s’plaintiff the dismissed court Santangelo the ,care due of lack of indications these Despite

 would decision s’committee the if determine to it before evidence sufficient not was there because

 medical and character s’releasee the of examination thorough more a had different any been have

 required usually is it ,assessed is liability negligence Before .undertaken been conditions mental or

 that even said be not could it ,Here .injury the of fact in cause the be to proven be negligence the that

 the ,Thus .prevented been have could harm the ,steps diagnostic these take to failure the” for but“

 its by posed dangers the of known have should or knew committee the that establish to failed plaintiff

 .assessed was liability No .release to decision

 in courts state of considerations the of illustrative similarly is court York New a from case Another

,6State .v Welch In .claims release negligent

 history a had who inmate an paroling in negligence s’board parole state the by caused damages ingclaim York New of State the against brought was action 

 and attacking viciously for incarcerated been had who and behavior deviant and antisocial violent of

 supervising in negligent was state the that alleged further was It .women young assaulting sexually

 a with her struck parolee the when injuries permanent plaintiff the causing thus ,parolee a as him

 .appealed plaintiff the and case the dismissed court trial The .river a in her threw and lumber of piece

 duty s’state the of extent and nature the that stating ,dismissal the affirmed court appellate state The

 ,foreseeable were actions s’prisoner released the whether of question the as well as ,supervision of

 charge the of supportive allegations factual adequate forth sets claim the if only issue at put be can

 release s’parolee the of conditions and terms the ,case this In .state the of part the on negligence of

 was state the which in manner the to as allegations factual any there were nor ,forth set not were

 was liability No .assault the of fact the from presumed not was state the of negligence The .negligent

 .imposed

 be never could authorities release state the that say not did courts the ,cases two these in that Note

 failure of result the was Santangelo in claim liability the ,contrary the On .actions their for liable held

 been have would agency the by decision resulting the negligence without that prove to plaintiff the by

.officers parole and board parole the of part the on gencenegli prove to sufficient evidence forth bring to plaintiff the of failure the was it ,Welch In .different

 of release the involved cases these of Both .release negligent of cases in courts state by sideredcon issues the demonstrate to serve also below discussed Larson and Thompson of cases The

 not were whom of both ,board parole a by other the and ,department probation a by one—juveniles

 .release for liable held

,7(1980) Alameda of County .v Thompson In

 a case the considered Court Supreme California the 

 the releasing) 1 (:in department by conduct negligent grossly and ,wanton ,reckless for County medaAla against action filed parents s’victim The .department probation county the by release s’linquentde the after hours 24 within delinquent a by killed and assaulted sexually was who boy old-year5-

 the to propensities s’delinquent the of notice give to failing) 2; (community the to delinquent juvenile

 care reasonable exercise to failing) 3; (parents and police the to release of place and fact the of ticeno and ,neighborhood the in children young the of parents the and ,police the ,mother s’delinquent

 in care reasonable use to failing) 4 (and; release his after ,mother s’delinquent the ,agent its through

 the on primarily decision its Basing .custody s’delinquent the undertake to agent its of selection the

 employees government by acts discretionary for liability from immunity provides that law California

 the and case the dismissed court trial the ,conditions parole or parole determining in immunity and
Offenders Released by Committed Crimes for Officials Parole of Liability

15 CHAPTER

279

 special no alleged plaintiffs the) 1 (because liability no found court appellate The .appealed parents

 had decedent the) 2 (and county defendant the and themselves between relationship continuing or

 .threats s’offender juvenile the of target identifiable readily or foreseeable a been not

:8ruled Thompson in court the ,summary In

 concluded has Legislature the Yet .foreseeable statistically is crime that of commission the of bilitypossi the ,crime a commits thereafter and released is offender dangerous potentially a Whenever

 Within .continuance their mandate programs release rehabilitative from society to benefits the that

 existence the from arises and upon depends warn to duty the reasons policy for and context this

 those In .]omitted citations [. . . victims of group or victim identifiable specific a to threat prior a of

 readily or named a to harm of threat predictable a poses offender released the which in instances

 releasing a ,danger the of warned effectively be can who victims of group or victim identifiable

.persons such warn to failure for liable be well may agent

,9Darnell .v Larson In

 court The .girl old-year12- a murdered and assaulted sexually parolee juvenile a 

 to where and ,parole to when ,parole to who over decisions its if even board the for immunity found

 that noted court the Although .wantonly and ,willfully ,negligently performed were parolee the place

 different a about brought have might power of abuse or motives malicious or corrupt of evidence

 the by decisions discretionary protecting in interest policy public strong a reflects decision the ,result

 supervisory’ officials parole between responsibility of boundaries the draws Larson .officials parole

 .decisions those administer who officers parole the and decisions

 release negligent for liability potential the ,Payton and Grimm ,cases two next the in ,contrast By

 cases the of All .release negligent of cases in liability from immune be to expect always cannot cialsoffi parole that indicate cases two These .officials parole to attached liability ,hence; proved was

 by made be may that claims of types the of examples are section this in below and above discussed

 the and ,negligence of elements the consider courts federal and state which in manner the ,plaintiffs

 .officials state to immunity of application

 sued were members its and board parole the ,10Paroles and Pardons of Board Arizona .v Grimm In

 served had who psychopath social dangerous diagnosed a ,Blazak Mitchell of release negligent for

 the invoked board parole The .kill to intent with assault and robbery armed for sentence a of third-one

 that held court The .Court Supreme Arizona the by rejected was this but ,defense immunity absolute

 .functions discretionary their of exercise the in immunity qualified only enjoy members board parole

 owed one from case the in duty its narrowed had Board the that said court the ,law state on Relying

 may there which for (individuals to owed one to) liability no is there which for (public general the to

 dangerous having person a ,of charge taking or ,over supervision parole assuming by) liability be

 grossly or reckless was decision release the that finding the on based also was Liability .tendencies

 .negligent clearly or

 the ,liability allow therefore and rule immunity absolute the reject that Arizona like jurisdictions In

 in negligent clearly or grossly or ,reckless members board parole are when becomes issue central

 duty of standards the use to tend Courts .answer definitive no is There 11?release parole a granting

 officials parole the on imposed care of duty legal a was there whether meaning—foreseeability and

 that out points writer One .foreseeable be could danger the ,case a of facts the given ,whether and

 has prisoner the that believe to basis reasonable no is there and ,)Grimm in as (tendencies lentvio indicated prisoner the of record entire the if negligent grossly be would release to decision a

.12changed

 USPC the that ,13)1981 (States United .v Payton in held Appeals of Court Federal Circuit Fifth The

 ,kidnapped then who prisoner federal a of release the of because negligence for sued be could

 Claims Tort Federal the under brought ,suit The .women three murdered and ,assaulted sexually

 been had who prisoner federal a released it when negligent was Commission the that charged ,Act
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

15 CHAPTER

280

 released and parole granted later was he and ,years 10 to reduced was sentence s’prisoner the ,nalssig warning these Despite .woman a beating severely for imprisonment of term years 20 a to tencedsen been had who and ,prison in while psychotic homicidal ,dangerous a as diagnosed repeatedly

 release the that said court The .women three the killed subsequently He .priest a of custody the into

 an not was behavior brutal repetitive for propensities known his of disregard total with prisoner a of

 .limitations statutory clear outside completely act an was ,instead ,but ,discretion of exercise

 parole of promulgator the as role s’Commission the between distinguished court Circuit Fifth The

 that said of court The .cases individual to guidelines the applying in responsibilities its and guidelines

 appropriate the of selection the concerned have then would dispute the because ,themselves linesguide government the attacked had suit damage the if immune been have would government the

 the ,however ,case this In .discretion agency to committed been has law by which ,policy release

 This .parolee particular this to applied properly not were parole for guidelines the that charged suit

 negligent their for not but ,guidelines parole drafting for immunity enjoys government the that implies

 :concluded court The .application

 the under Suits ....increases also negligence that of burden full the bearing individuals pensatecom to need the ,increases negligence its by harm for potential the and grows government As

 the as well as losses the distribute to means efficient and fair a provide Act Claims Tort Federal

.14system parole a of benefits

 supervision without release to decision the ,rehearing subsequent s’court circuit the on ,However

 that noted court The .FTCA the under actionable not ,therefore ,and discretionary be to held was

 ,process decisionmaking the of step required a ignored Commission the that alleged plaintiffs had

 also be could claim a that suggested court the ,Alternatively .actionable be would claim a such

 the from separable sufficiently duty a breached have to shown be could Board the where actionable

 outside fall ,therefore ,and function nondiscretionary a as considered be to function decisionmaking

 the by made not arguments to as speculated ,court The .FTCA the to exception immunity judicial the

 and parolee the of supervision continued for provided have could Board the that noted and plaintiffs

 .discretion of abuse an been have may so do to failure that

 gross alleging suit 198516 § and 1983 § a from immunity absolute enjoyed Board Parole State seeTennes the of members that ,15Trammell .v Janan in held Appeals of Court Federal Circuit Sixth The

 robbery armed of convicted previously ,parolee The .parole on inmate an of release the in negligence

 § a filed victim murdered the of family The .murder committed and Florida to escapee prison a paniedaccom he when months two than less for parole of term second his on been had ,larceny grand and

 process due without life his of victim the deprived action s’board parole the that claiming action 1983

 should defendants the that claim they did nor ,parolee the to responsibility specific any had dantsdefen the or board parole the that claim not did victim the of family the that held court The .law of

 the endanger would violations parole possible subsequent or release s’parolee the that known have

 the from remote causally were actions s’defendant the found court the ,reasons these For .victim

 .liable held not were s’defendant the and murder

 immunity enjoyed officials parole that held Circuit Eighth the for Appeals of Court Federal The

 kidnapped parolee Missouri a ,17Balazic .v Nelson In .crime s’parolee a involving suits 1983 § from

 for prison to back sent be to going was he that learning after women three assaulted sexually and

 which to program treatment alcohol and drug a of employees were women The .parole his violating

 Probation of Board Missouri the of members two were defendants The .parole upon referred was he

 be to members board parole two the held court The .officer parole supervising the and Parole and

 The .parole grant to deciding of function judicial-quasi the performing in suit from immune absolutely

 court the ,immunity qualified granted was officer probation the Although” .process judicial the with edassociat intimately “not were duties her because immunity qualified have to found was officer parole
Offenders Released by Committed Crimes for Officials Parole of Liability

15 CHAPTER

281

 she thus ,rights constitutional or statutory established clearly violate not did conduct her that held

1983. § under sued be not could

 by release negligent of cases in found be fact in may liability ,succeed usually not do decisions leasere challenging crime of victims by suits although ,that indicate strongly cases decided ,summary In

 level the to rise must negligence such but ,agents government other or officers parole ,officials parole

 and defined precisely be cannot ,however ,recklessness or negligence Gross .cases release gentnegli in attach to liability for sufficient not is negligence Mere .recklessness or negligence gross of

 boundaries general suggest merely cases preceding The .basis case-by-case a on decided be must

 .victims the of death or to injury caused inmates released where cases in negligence of

 Exposure Liability Is There if Remedy Legislative .A

 because attention special invites ,Court Supreme .S.U the by decided ,18)1980 (California .v Martinez

 to members board parole enable to legislatively done be can and be might what of indication an is it

 of parents The .offender sex a as history his despite prison from released was he after months 5 eeparol a by murdered was girl old-year15- a ,Martinez In .release negligent for liability tort state avoid

 claiming 1983 § and law state under court state California a in action an brought girl deceased the

 to victim murder the subjected ,parolee the releasing negligently in action their by ,officials state that

 trial The .damages for liable therefore were and law of process due without life her of deprivation a

 held Court The .Court Supreme .S.U the reached eventually case The .complaint the dismissed court

 tort a defeat to applied when unconstitutional not is statute immunity California the) 1 (:following the

 federal under liable held not were members board parole the) 2 (and; law state under arising claim

 :following the of because law

 of process due without life of state the by deprivation from person a protects amendment th14 The■ 

 s’parolee the ,action state was prison from parolee the release to decision the although ,and ,law

 .action state a considered be cannot later months 5 action

 or victim s’parolee the to harm avoid to duty a had either board parole the whether of Regardless■ 

 meaning the within life of victim the” deprive “not did officials parole ,death her caused proximately

 .amendment th14 the of

 parole the of agent an sense no in was parolee the where circumstances particular the Under■ 

 at public the from distinguished as ,person particular a that aware not was board the and board

 parole the of consequence a remote too was death s’person that ,danger special any faced ,large

1983.19 § under responsible thereof officials the hold to action s’board

 tort state under liability from employee public a or entity public a to immunity absolute granting callyspecifi statute California a of constitutionality the ,issues other among ,involved Martinez that Note

 that simply was Martinez of crux The .determinations release parole from resulting injury any for law

 officials state against claim tort a defeat to applied when constitutional is statute immunity state a

 rationally law the that deny cannot one ,cases these for immunity absolute provide to decision s’niaCalifor with disagrees or agrees one whether that said Court Supreme The .law state under arising

 whether of issue the resolve not did case The .favor may lawmakers reasonable that policy a furthers

 pass may states Other .Court the by unresolved still is issue That .law constitutional of matter a as tyimmuni absolute to entitled is ,inmate an release to whether deciding when ,member board parole a

 acts official for liability possible from officials parole their protect fully to want they if statute similar a

 .law state under

 persons protects only amendment the that responded Court Supreme .S.U The .Amendment teenthFour the of Clause Process Due the under ensued liability that contended Martinez in plaintiffs The

 was case this in prison from parolee the release to decision the Although .ensue to liability for entpres be must involvement State .law of process due without state the by life of deprivation from
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

15 CHAPTER

282

 be not could release after months five did parolee the what ,state the of act an considered originally

 a considered be to time in remote too was case this in death The .action state as characterized fairly

 implies This 1983. § under responsible them hold to and action’ officials parole the of consequence

 time of passage the by attenuated is release to decision initial negligent a ,litigation federal in ,that

 too was case this in injury or harm the ,words other In .occurs releasee a by harm until release from

.attach to negligence for time in remote

 .v Daniels in decision its to prior Martinez decided Court Supreme the that noted be should It

 process due a trigger not does negligence official that clear made Court the where) 1986 (Williams

 release negligent the of any in issue at was negligence official that argued be could It .20violation

 a alleged prisoner state a ,official prison a against suit 1983 § a In .chapter this in discussed cases

 The .conduct negligent s’official the by caused injury bodily by deprivation Amendment Fourteenth

 directly not is case this Although 21”.property or ,liberty ,life to injury or of loss unintended causing cialoffi an of act negligent a by implicated not simply is Clause Process Due the “that concluded Court

 official of acts of grounds the on decided be could cases that suggest does it ,Martinez with point on

 board parole that prove to have would plaintiff A .consequences unintended have that negligence

.inmate an releasing by deprivation other or harm cause to intent had officials

SUMMARY

 It .nonrelease or release for boards parole of liability the to related issues discusses chapter This

 release parole in entitled are inmates which to ,any if ,rights the) 1 (:concerns following the addresses

 and released are who inmates by committed crimes for boards parole of liability civil the) 2; (hearings

 of violation for inmates to boards parole of liability the) 3 (and; parole on while crimes commit who

 .rights procedural and substantive

 release parole in rights constitutional minimal and diminished have inmates that holds law Case

 although ,counsel to right constitutional a have not do they ,hearings release parole In .hearings

 be to right constitutional no have Inmates .policy agency or law state by conferred be may right the

 agency or law state by recognized be also may right that ,however; criteria release the of informed

 for explanation an inmates provide officials parole requiring right constitutional no is There .policy

 a or feedback contemporaneous inmates give routinely fact in jurisdictions most but ,parole of denial

 .explanation written

 offense an commits subsequently who parole on inmate an of release the for liability’ officials Parole

 form the in public the and courts the of attention the drawn repeatedly has that issue important an is

 thus ,parole of purpose one is protection public that infers public The .lawsuits release negligent of

 would injury the because public the of member a injures parolee a if liable held be should board the

 claims release negligent Generally .officials parole of negligence gross the for but occurred have not

 engaged when immunity absolute to entitled are officials parole that hold courts because failed have

 have courts Some .acts discretionary judicial-quasi—judge a by performed those to similar actions in

 .plaintiffs by proved is negligence reckless or gross where cases in liability found

 have courts ,parole to related rights constitutional’ inmates of violations alleged involving lawsuits In

 performance the in immunity them afforded have and liable not are officials parole that held usually

 and caution exercise must officials Parole .responsibilities and duties discretionary official their of

 because jurisdiction their in policy agency or law by prescribed guidelines procedural the observe

 are that rights of number a of violations of issues raise can policies and laws these from deviation

 .minimal are rights these if even ,inmate an due
Offenders Released by Committed Crimes for Officials Parole of Liability

15 CHAPTER

283

NOTES

.(1979) 13 1, .S.U 442 ,Complex Penal Nebraska of Inmates .v Greenholtz 1.

 784 d.2F 569 ,Shields .v Franklin); 1978 .Cir th5 (1016 d.2F 566 ,Wells .v Johnson ,generally See 2.

 .(1977 .Cir DC (231 d.2F 566 ,Burke .v Thompson); 1972 .Cir th4(

.(2009 .ed th9 (Dictionary Law s’Black 3.

.Id 4.

.(1980) 931 d.2S.Y.N 426 5.

.(1980) 774 d.2S.Y.N 424 6.

 .(1980) 728 d.2P 614 7.

732. at .Id 8.

.(1983 .Ct .App .Ill (249 d.2E.N 448 ,Darnell .v Larson 9.

 (1982 .Ariz (597 d.2P 656 ,State .v Ryan Subsequently .)1977 (1227 d.2P 564 ,Arizona .v Grimm 10.

 the curtailing severely hence ,Arizona in distinction ministerial .v discretionary the abolished

.defense immunity

 Release to Decision for Immunity Qualified Only Have Members Board Parole—Torts ,Note 11.

.(1979) 1313 1301, .Rev .L .Ford 46 ,Prisoner

1314. at .Id 12.

 ;(1981 .Cir th5 (385 d.2F 649 ,granted g’reh ,)1981 .Cir th5 (132 d.2F 636 ,States United .v Payton 13.

 .(1982 .Cir th5 (475 d.2F 679

.Id 14.

.(1986 .Cir th6 (557 d.2F 785 ,Trammell .v Janan 15.

1985. .C.S.U 42 16.

.(.1986Cir th8 (1077 d.2F 802 ,Balazic .v Nelson 17.

.(1980) 277 .S.U 444 ,California .v Martinez 18.

.Id 19.

.(1986) 327 .S.U 474 20.

328. at .Id 21.

16 CHAPTER

 PAROLE FOR IMMUNITY

OFFICIALS BOARD

 INTRODUCTION

 IMMUNITY JUDICIAL-QUASI OR ABSOLUTE .I

Federal .A

State .B

SUMMARY

 NOTES

285

Officials Board Parole for Immunity

16 CHAPTER

287

INTRODUCTION

IMMUNITY JUDICIAL-QUASI OR ABSOLUTE .I

 parole for immunity judicial-quasi or absolute of issue the on ruled not has Court Supreme .S.U The

 should officials board parole that courts lower among consensus general is there but officials board

.1functions tionarydiscre ,adjudicatory-quasi or adjudicatory performing are they where least at ,immunities these enjoy

 filed lawsuits of number a in immunity absolute enjoyed have officials board Parole 

 officials board parole protects only not immunity judicial-quasi or immunity Absolute .them against

 viable as courts the by viewed be will officials that chances the reduces it ,damages for liability from

 of favor in granted is judgment summary or dismissed are claims ,cases most In .lawsuit a to parties

 .officials board parole

 to regard with officials board parole of functions judicial-quasi the from stems immunity Absolute

 actions judicial-quasi or judicial to attach not does immunity The .decisions release discretionary

 ,malice with act officials parole if even apply does but ,jurisdiction all of absence clear in performed

.2corruptly or ,faith bad in

 in” view functional “a as known is what taken has Court Supreme The 

.3functions judicial-quasi perform who officials parole to immunity absolute extending

 ,chapter this In 

 ,legislation of language the in indicated otherwise unless ,used be will” immunity absolute “term the

.law case or ,regulations and rules administrative

,4Procunier .v Sellars In

 Appeals of Court Federal Circuit Ninth the by taken was view functional the 

.5mouEcono .v Butz in Court Supreme .S.U the by forth set test” comparability functional “the using by

 just not look “to court a requires ,view functional the under ,test this that held court circuit The 

 ,superstructure bureaucratic the within location her or his to or ,official federal or state a of title the to

.6immunity of question the determining in well as function s’official the to but

:opined court The 

 they when judges to tasks comparable functionally perform officials board parole that believe We

 is officials board parole and judges both of task daily The .parole revoke or ,deny ,grant to decide

 those by suits unfounded constant of risk same the face] officials board Parole [....decisions tialimpar render to :same the often is duty Their .controversies or cases specific of adjudication the

.7decisions s’board parole the by disappointed

Federal .A

 for avenues other have inmates ,However 1983. § under sued be cannot officials Federal that Recall

 (.procedures and structure USPC of clarification for) 1)(a(II part in discussion see) (USPC (sionCommis Parole States United of examiners and commissioners parole the against claims asserting

,8Case Court District Federal Massachusetts a In

 dismissing for basis the was” view functional “the 

 and commissioners parole its of several and ,USPC the of Chairman the against claim s’inmate an

 how illustrates it ,revocation parole a to response in was case this Although .examiners hearing

 a filed parolee The .examiners and commissioners parole federal to applied is view functional the

9action Bivens

 and compensatory sought and capacities individual their in officials USPC the against 

 to entitled were defendants the whether on turned case The .defendant each from damages punitive

 Court The 10”.process judicial the with associated closely “were actions their if and immunity absolute

 consensus a was there that and functions judicial-quasi performed defendants the of all that found

 from immune absolutely are members board parole that Appeals of Courts Circuit Federal among

.11nature judicial a of functions performing when liability civil

 federal found Appeals of Court Circuit Seventh Federal the 12Irving .v Powell .rel ex States United In

 that noted court the ,However 1983. § under claims liability from immune absolutely officials parole
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

16 CHAPTER

288

 parole to regard with inmates black against discrimination racial systematic of claims s’plaintiff the

 is board the of part the on discrimination Impermissible .relief declaratory for sufficient were releases

 .principles immunity despite ,actionable

State .B

 of cause 1983 § a in relief injunctive for capacity individual her or his in sued is who official state A

 the On .13liability for basis the as serve may which 1983, § under” person “a be to considered is action

 prospective for actions ,capacity official an in sued is officer state a or sued is state a if ,hand other

 ,immunity absolute to approach functional the under ,hence; function judicial-quasi a considered allygener is board parole a on Service 1983.14 § under cognizable not are damages monetary or relief

 .capacities official their in sued when immunity absolute to entitled are members board parole state

 .capacity individual an in sued is member a when afforded be not may protection such ,However

 absolute of explanation apt an affords Sellars in opinion’ Appeals of Court Circuit Ninth Federal The

 to right a has inmate an ,California In .capacities official their in officials parole state for immunity

 court The .hearing release a in considerations process due afforded is and release parole for apply

 stemming lawsuits 1983 § in immunity absolute enjoyed officials board parole state that determined

.application release parole s’inmate an of processing the from

 members and Chairman the against action 1983 § a filed inmate an ,15Haun .v Malek in ,Similarly

 sought Malek .capacities individual and official their in Parole and Pardons of Board Utah the of

 officials board parole that claim his in relief declaratory and injunctive and damages compensatory

 determination and criterion improper an using ,sentence his crediting not by parole him grant to failed

 interest liberty a create not do statutes s’Utah .criteria release the applying retroactively and ,scheme

 s’state the but ,release parole to entitled legitimately not are prisoners state Utah ,Thus .parole in

 parole the which in hearing release parole initial an for protection process due grants constitution

 had state The .parole on released be may inmate an which under conditions the determines board

 that complained he and sentenced was Malek when existed that system parole the to changes made

 Fifth the ,)punishment unusual and cruel (Amendment Eighth the under protection denied was he

 parole of denial for Constitution the of 16Clause Facto Post Ex the and ,)jeopardy double (Amendment

 holding Greenholtz the Following .sentenced was he after place in put was that system the on based

 Appeals of Court Federal Circuit Tenth the ,system parole a establish to obligated not are states that

 Constitutional for need the invoke necessarily not and system parole its alter could Utah that found

 defendants the that stated court the ,frivolous as dismissed was case s’Malek Although .protections

 capacities official their in immunity absolute to entitled and damages for liability from immune were

.capacities individual their in immunity qualified and

SUMMARY

 liable held be should board the thus ,parole of purpose one is protection public that infers public The

 the for but occurred have not would injury the because public the of member a injures parolee a if

 courts because failed have claims release negligent Generally .officials parole of negligence gross

 those to similar actions in engaged when immunity absolute to entitled are officials parole that hold

 cases in liability found have courts Some .acts discretionary judicial-quasi—judge a by performed

 .plaintiffs by proved is negligence reckless or gross where
Officials Board Parole for Immunity

16 CHAPTER

289

NOTES

 Appeal of Courts Circuit Federal 11 the from cases of explanation and list comprehensive a For 1.

 parole for immunity absolute of view consensus their regarding Circuit Columbia of District the and

285-298. .n 302-304, at 9 note supra ,Johns see ,officials board

.(2010 July (105 § Rights Civil d2 .Jur Am 15 See 2.

 function the) (1993 (259 .S.U 509 ,Fitzsimmons .v Buckley”); process judicial the with associated lyclose “officials to extended immunity absolute) (1985 (200 193, .S.U 474 Saxner .v Cleavinger See 3.

 (1978) 478 .S.U 438 ,Economou .v Butz); examined is official an of status or rank the not ,performed

.(suit from immune are examiners hearing federal(

.(1981 .Cir th9 (1295 d.2F 641 4.

 27. note supra Greenholtz also See); 1978 (478 .S.U 438 5.

1303. at 34 note supra See 6.

.Id 7.

.(1996 .Mass .D (5 .Supp.F 926 ,Reilly .v Namey 8.

 action Bivens A ....right constitutional a of violation s’official federal a redress to brought lawsuit A “9.

 state for 1983 § USCA 42 at forth set that to similar manner a in sued be to officials federal allows

 Dictionary Law s’Black” .law state of color under rights constitutional s’person a violate who officials

,Narcotics of Bureau Federal the of Agents Named Unknown Six .v Bivens .,g.e See .)2009 .ed th9(

.(1971) 388 .S.U 403

8. at 27 note Supra 10.

 ;(1987 .Cir st1 (5 d.2F 815 ,Members Board Parole Island Rhode .v Johnson citing 38 note Supra 11.

 (1992 .Cir th19 (300 d.2F 972 ,Uppah v Russ); 1994 .Cir th7 (277 d.3F 35 ,States United .v Walrath

 parole by duties official under taken action any encompassed immunity of scope the that suggesting(

.(administrative or adjudicatory whether members board

.(1982 .Cir th7 (494 d.2F 684 12.

.(1991) 21 .S.U 502 ,Melo .v Hafer 13.

.(1989) 58 .S.U 491 ,Police State of Department Michigan .v Will 14.

.(1994 .Cir th10 (1013 d.3F 26 15.

 be shall law facto post ex no that granting (1 .cl 10, § I .Art and 3 .cl 9, § ,I .art .Const .S.U See 16.

 made or one]d “[as” facto post ex “tern the defines) 2009 .ed th9 (Dictionary Law s’Black ((.)passed

 is law facto post ex an that explains dictionary The” .effect or force retroactive having; fact the after

 s’person a affects negatively that way a in] especially [,retroactively applies impermissibly that law A“

 laws criminal facto post Ex .committed was it when legal was that action an criminalizing by as ,rights

.((“.allowed be may laws civil retrospective But .Constitution .S.U the by prohibited are

17 CHAPTER

 ,CONCERNS SPECIFIC ,QUESTIONS

ADVICE GENERAL AND

INTRODUCTION

 QUESTIONS .I

 OFFICERS PAROLE/PROBATION FOR CONCERNS SPECIFIC .II

 Representation Legal .A

 Indemnification .B

 Insurance Liability Professional .C

Statutes Immunity .D

 Information Authoritative of Source .E

 WORD FINAL A

NOTES

291

Advice General and ,Concerns Specific ,Questions

17 CHAPTER

293

INTRODUCTION

 help of be should that advice general and ,concerns specific ,questions features chapter final This

 are questions The .edition first the for Consultants of Board the by expressed concerns the of positecom a are chapter the start that questions the ,book the of edition first the from Taken .readers to

 and study further need that issues legal the of awareness heighten to chapter final this in featured

 .jurisdictions specific in exploration

 liability professional ,indemnification ,representation legal :concerns five addresses also chapter The

 in changed has much Not .information authoritative of sources and ,statutes immunity ,insurance

 .reiterated are concerns these ,therefore; published was edition first the since concerns these

 extensive an of result composite the represents here given advice generic The .avoided or imizedmin be might liability legal how on officers parole and probation to given is advice general ,Finally

 first the for eighties early the in conducted was that general attorneys of offices of survey national

 ,hence; today same the be would advice their that think to reason every is There .book this of edition

 a of advice the preempt to ,however ,meant not is It .edition this in replicated is survey the of part that

 .jurisdictions specific in law the with familiar more is who counsel legal

QUESTIONS .I

 and probation questions important are below listed ,awareness deeper and protection legal better For

 legal and employers their from answers obtain should they which for and ask should officers parole

 apply help and monograph this in addressed issues vital several highlight questions These .advisors

 parole/probation of interest the in be would It .jurisdictions or states individual to concerns legal these

 :following the to answers authoritative give can who persons ableknowledge other or ,advisors legal ,employers their with workshop or seminar a arrange to officers

 or agency my will ,court federal or state in action liability civil or ,tort ,criminal a in sued am I If 1.

 ?me represent to lawyer a provide employer

 ?do I should what ,lawyer their by contacted am I and ,me or ,sonnelper agency ,agency the against suit contemplating is else anyone or ,probationer ,parolee a If 2.

 documents court or/and papers legal with served am I when and if do I should specifically What 3.

 ?me against filed been has lawsuit a that indicating

 the will ,agency my and me or ,codefendant a and me between interests of conflict a is there If 4.

 ?me for attorney different a appoint government

 in suit tort a in officer parole/probation state a as me to available defenses special any there Are 5.

 ?defendant the am I which

 ?employees/officials public or officers parole or/and probation to callyspecifi apply that aware be must I which of jurisdiction my in laws criminal specific any there Are 6.

 liable held been has officer parole or probation a where state my in cases decided any there Are 7.

 ?me affect cases those will how ,yes If? party third a to or client the to either law tort state under

?law s’state my under officer parole/probation a as enjoy I do ,any if ,immunity of type What 8.

 federal a or tort state a in liable found am I if me indemnify would that laws have state our Does 9.

 ?optional or mandatory coverage the Is? me to apply laws these do how ,so If? action rights civil

 procedures What? sued am I if indemnification of chances my enhance to do to have I do What 10.

 ?follow I must
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

17 CHAPTER

294

 from assets personal my protect to ,state my of laws the with consistent ,way best the is What 11.

 ?me against judgment a of satisfaction for execution and seizure

 group a of member a as or individually me to available insurance liability of kind any there Is 12.

 ?privately or government the through

 ?how and what ,so If? work my in me affect might that law rights civil state a have state our Does 13.

 to offender the about information of disclosure of issue the covering law a have state our Does 14.

 laws and ,information record offender criminal of confidentiality on laws ,laws privacy .,g.e (others

 it does how ,so If)? information vocational and ,education ,health mental of confidentiality the on

 ?violations for procedures and penalties the are what and me to apply

 or ,designate her or his ,lawyer her or his ,offender the gives that law state a have state our Does 15.

 requirements specific the are what ,so If? reports my in or file my in information to access others

 ?noncompliance for procedures and penalties the are what and

 ?how ,so If? me to applies that Act Procedures Administrative an have state our Does 16.

 is officer hearing the that feel I ,hearing revocation a at ,if do I should what ,officer parole a As 17.

 ?Morrissey under process due to rights her or his parolee the denying

 an as conduct my govern that directives and ,policies ,regulations of compilation a there Is 18.

 ?offenders with work my to as specifically relate and employee

 advise to obligated is who turn can I whom to official public any there Is? advisor legal my is Who 19.

 ?rely to entitled am I advice whose upon and matters legal in me

 ,seizure ,search ,arrest vis-à-vis powers enforcement law my are What? officer peace a I Am 20.

 a carry to empowered I Am? officers enforcement law by assisted be and assist to ability and

 ?weapon

 their and offenders of frisk or search and arrest on guidelines any have agency or court my Does 21.

 ?property and homes

 public a as duties and responsibilities my to relate that state our in laws specific there Are 22.

 ?they are What? particular in officer parole or probation a as and employee

 ?offenders my of duties and rights the out set that jurisdiction our in laws specific there Are 23.

 a to access probationer the give will that restitution of assessment on policy written a have we Do 24.

 ?me by narilyprelimi assessed or victim the by claimed amount the with disagrees he if determination judicial

 the delegate board parole or judge a can ,state this in decisions court or law state to According 25.

 ?liability against law state under defense best my is what ,anyway it do boards or judges but ,eddelegat be cannot these If? me to amount restitution the of setting the or conditions of imposition

 that parole or probation of conditions modifying or imposing my on policy written a have we Do 26.

 ?action my contests he if board or judge the to access immediate offender the give will

 ?accident auto an of event the in assume employer my will bilityresponsi What? vehicle private my in) prisoners (offenders transporting about do I should What 27.

 ,so If? them to danger possible a presents offender the believe I if persons third warn I Should 28.

 ?advice for contact I should whom ,call close a is it If? circumstances what under

 “forward foot best “their put to how on and procedures on offenders advise to me want you Do 29.

 ?board or court the before appearing when
Advice General and ,Concerns Specific ,Questions

17 CHAPTER

295

 ?board parole or court the to reported violation every want you Do 30.

 ?state our in mean” negligence “and” faith good “terms the do What 31.

 ,rules administrative regarding basis date-to-up an on informed am I that sure be I can How 32.

 ?me affecting cases decided and ,regulations

 PAROLE/PROBATION FOR CONCERNS SPECIFIC .II

OFFICERS

Representation Legal .A

 ,states some In .officers parole and probation of concern major a as rank should representation Legal

 defense the undertake to general attorney state the allows that exists understanding unwritten an

 but informal This .meritorious is case the ,judgment s’general attorney the in ,if officer public a of

 or political on based representation of denial for allows and uncertainty creates practice pervasive

 .defend will they acts of kinds the deciding in guidelines various use States .considerations personal

 defend not will they that indicated number substantial a ,time the of some least at representation galle provide they that stated monograph this of edition first the for surveyed states the of all Although

 of defense the undertake not will states the of half that showed survey same The .suits civil all in

 attorney the of office the by undertaken be can representation Legal .crime a of accused officer an

 an where insurance medical to similar system a through or ,officers legal county or city the ,general

 .lawyer own her or his choose to option the has employee

 for representation than reassuring less much is level government local the at representation Legal

 are states of majority great a in agencies parole although because significant is This .officers state

 ,control local more much under typically are offices probation ,states the by funded and administered

 of type the determines agency Each .agencies political or ,judges ,districts judicial local by either

 to officials local allowing from vary Arrangements .officers public local to gives it representation legal

 .officer the represent attorney district or county the having to expense s’county at lawyer own their get

 be indemnification and representation on policy the that important is it ,arrangement the Whatever

 (“filed is lawsuit a if you of care take will we ,worry t’Don (“policy informal An .formalized and clarified

 .reassuring from far is and selectively implemented be can it because avoided be should

 Indemnification .B

 .liable held is officer the when and if ,indemnification of issue the is representation to related Closely

 albeit ,employees public their of liabilities civil the for indemnification provide states the of majority A

 sometimes are and vary also pay will state the which under conditions The .amounts varying in

 do often states ,indemnification of form some for provide states most although ,Moreover .unclear

 to state the expect can employees ,agencies local and states most In .indemnify automatically not

 scope the within was based is liability of finding the which on act the if only judgment the pay help

 “employment of scope the within “terms the of definitions The .faith good in done and employment of

 final usually is employee an represent to not decision a and ,state to state from vary” faith good “and

 .appealable not and

 legal covering statutes state specific their into look to advised are officers parole and Probation

 .problem definitional a from comes protection of lack the of Part .indemnification and representation

 the refine further that guidelines specific very out spell to ,impossible not if ,difficult is it Although

 a go terms these of definitions working” ,faith good “and” duty of scope the within acting “phrases

 a in out laid not are definitions Such .arbitrariness minimizing and anxiety alleviating toward way long

 .statutes current of number
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

17 CHAPTER

296

 s’court trial a that understanding an be there that important is it ,protection maximum of purposes For

 not faith good of absence the in and duty her or his of scope the outside acted officer the that finding

 should assessment independent An .indemnification ,especially ,or representation of dispositive be

 on based ,)officers local for attorney county or attorney district the and officers state for office s’algener attorney the usually (indemnifies and represents that authority state the by undertaken be

 outside obviously and egregious are that cases Only .agency that by determined as circumstances

 this Without .indemnification and representation legal denied be should employment of scope the

 as ,because ineffective be can law indemnification and representation legal s’state a ,understanding

 and faith good in officers parole and probation by performed are that acts ,stands law case current

 an ,laws state most of provisions” employment of scope the within acting “and” faith good “the of siteprerequi the of because ,So .anyway liability from exempt are employment their of scope the within

 one whereas ,)indemnification no needs therefore and (liability no has faith good in acts who officer

 state most under indemnified be cannot) indemnification needs therefore and (liable adjudged is who

 .employment of scope the outside or/and faith bad in acted he because laws

 Insurance Liability Professional .C

 legal of issues the with along consideration serious given be should insurance liability Professional

 minority a only ,edition first the for survey project the to According .indemnification and representation

 .uncertain or absent either is indemnification or representation legal where states in desirable ularlypartic is Insurance .officers parole and probation for protection insurance have) percent 30 (states of

 .compensation damage and counsel legal both provide may companies insurance because is This

 although ,First .myriad are ,however ,insurance liability professional with associated problems The

 liability carry companies insurance few a only ,insurance obtain easily can officers enforcement law

 by paid be should it ,Ideally? premium the pays who ,Second .personnel corrections for insurance

 for used be to money public allow not do units government local and states some but ,agency the

 instead preferring ,premiums high of because employees their for insurance liability obtain to poseddis be not may ,level local or state the at whether ,policymakers ,Third .insurance liability employee

 employee The .ensues liability if funds own their of out pay will they that meaning ,insured-self be to

 .employee the for prohibitive be can that but ,option an always is premium the paying

 Statutes Immunity .D

,1California .v Martinez in ,Court Supreme States United The .legislatures state by action quiresre officers parole and probation by explored be should that protection of source possible Another

 held 

 under arising claim tort a defeat to applied when constitutional was statute immunity s’California that

 provides) Code Government California the of) a(845.8 (§ law California the of section That .law state

 :follows as

 his of conditions and terms the determining from or prisoner a release or parole to whether ingdetermin from resulting injury Any) a (:for liable is employee public a nor entity public a Neither

.2release or parole his revoke to whether determining from or release or parole

 .officers parole or probation of initiative the at states other by enacted be may statute similar A

 to apply not does liability civil from exception enacted-state a that ,however ,remembering worth is It

 immunity state a ,limitation this Despite .law federal on based are latter the because cases 1983§ 

 extending to impediment legal no be to appears there ,cases parole to coverage its limits cificallyspe statute California the Although .officers public to protection considerable extend does statute

 ,conditions of setting the as matters such on particularly ,officers probation include to coverage that

 .revocation probation and ,supervision
Advice General and ,Concerns Specific ,Questions

17 CHAPTER

297

 Information Authoritative of Source .E

 authoritative for turn can they which to source a need state each in officers parole and Probation

 develop state each ,least very the at ,that suggested is It .here addressed topics the on information

 already have states Some .monograph this in discussed topics the on focused perhaps ,manual a

 must it but ,lengthy be not need manual state The .concern of areas specific on focusing ,this done

 the as well as ,monograph this in discussed topics The .state that to specific information contain

 ,remember should writers manual Agency .points starting helpful be should ,above listed questions

 and decisions new by superseded be quickly may publication this in information the ,Moreover .tionjurisdic or state each to apply not may that information generic gives monograph this that ,however

 perhaps ,periodically manual its in information the update should state Each .developments statutory

 from memoranda occasional or newsletter s’association corrections or parole/probation the through

 .general attorney s’state the of office the or agency parole/probation the

 help to officers parole and probation give you would advice legal of bits important most three What

 ?work their with connection in liability legal possible lessen or avoid them

 early the in done was which ,edition first the for conducted that than survey recent more no is There

 are survey that of results The .years the over changed have to likely not are answers the but ,s1980

 as were answers five top the ,frequency response of order the in Ranked .here reproduced therefore

 :follows

 (percent 40 (.records good Keep .activities your Document■ 

 (percent 35 (.statutes state your and regulations and rules departmental follow and Know■ 

 (percent 27 (.arise questions whenever advice legal seek and counsel legal for Arrange■ 

 (percent 20 (.faith good in and ,duties your of scope the within Act■ 

(percent 18 (.doing are you what about questions have you if supervisor your from approval Get■ 

 :were) order descending in (advice of bits Other

 .one no excuses regulations or law the of Ignorance .)regulations mentaldepart new ,statutes ,developments legal relevant .,g.e (field your in developments with up Keep■ 

 .sense common Use■ 

 .supervisors with decisions important Review■ 

 .recommendations making before investigations thorough Undertake■ 

 .offenders of violations the Report■ 

 seriously being is action legal that suspect you if immediately supervisor your Notify■ 

 .contemplated

 .department your in policies comprehensive and clear Have■ 

 .time on duties Perform■ 

 .insurance out Take■ 

 .clients with dealings all in facts the to Stick■ 

 .offenders with involved personally get not Do■ 

 .procedures revocation with familiar Be■ 

 .politics of out Keep■ 
Edition th4 ,Supervisors and Officers Parole/Probation for Issues Legal Other and Liabilities Civil

17 Chapter

298

 .practices ethical on officers Advise■ 

 .officer police a as act not Do■ 

 .possible when offenders transporting Avoid■ 

 .property client for safeguards Ensure■ 

 advice of words these heart to take to officers parole and probation behooves it ,hand one On

 of knowledge; order in is caution of word a ,hand other the On .field the in professionals legal from

 caution excessive to officer an lead could liabilities possible of awareness and responsibilities legal

 duties s’one perform to failure or reluctance because avoided be should This .inaction to amounting

 by guided be to is rule general the ,doubt of case In .incorrectly acting than damaging more be can

 should and process due of essence the is fairness Fundamental .supervisor a or officer parole or tionproba a by made is decision that whether ,making -decision in fairness fundamental of principle the

 .arises lawsuit a if liability minimizing toward way long a go

Word l Fin A

 all on toll heavy a exact and ,money cost ,time drain ,anxiety cause They .burden a are Lawsuits

 ,times at ,is retaliation in officer parole or probation the by countersuit A .involved parties the of

 the exacerbate actually may this that aware be should officer prudent The .possibility attractive an

 job proper through lawsuits of Avoidance .forth so and ,time ,cost ,anxiety more generating ,problem

 continue officers parole and probation as option wiser the is fairness fundamental and performance

 It .change constant and challenge legal of time a in responsibilities and duties their discharge to

 .succeed not do agencies and officers parole and probation against lawsuits most though as appears

 reveals lose do agencies and officers where cases the of review careful and thoughtful a ,Moreover

.liability against protecting toward way long a go faith good of lot a and sense common little a that

 TES

.(1980) 275 .S.U 444 1.

.(1995) (a(845.8 § ,Code .Gov .Cal 2.

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