Parole Violations

If a condition of parole is legitimate, its violation by a parolee can result in the parolee being sent back to prison (parole revocation) to serve all or some of the balance of his original sentence.

By , Attorney · Santa Clara University School of Law

Parole is the early release of a prisoner sent to state prison, following a conviction for a felony. Parole can happen when the prisoner's sentence is a range of time, called an "indeterminate sentence," such as two to four years. When a sentence is "determinate" (such as "five years"), or when the crime for which the person was sentenced specifies "without possibility of parole," there is no parole.

In situations when parole is possible, the state's parole board or sentencing commission makes the decision to parole a prisoner. Parole can be either discretionary (the parole authority has wide latitude in choosing when to parole a prisoner, starting when the prisoner has served any minimum sentence), or mandatory (the sentencing statute specifies that parole must be granted after a certain period of time).

When Is Parole Granted?

Historically, parole boards granted release when they were satisfied that the prisoner had reformed and no longer posed a threat to society. In the days when this approach was popular, incarceration was seen as a way to reform criminals and turn them into law-abiding citizens. But starting in the 1970s, the aim of punishment changed to one of retribution (an eye for an eye), rather than reform. Many states switched from indeterminate sentences (thought to be "soft on crime") to determinate sentences, and with the switch, discretionary parole became less evident. However, with the realities of prison overcrowding and expense, parole continues to be practiced, if only to relieve the state of these burdens.

Conditions of Parole

When a prisoner is released on parole, he is bound to comply with many conditions, as long as they are reasonable, aimed toward rehabilitation, and sufficiently clear. Examples include regularly meeting with or contacting his parole officer, refraining from committing any crimes, avoiding the company of known criminals or gangs, and other conditions meant to keep the parolee out of trouble. Other conditions include travel restrictions, obtaining psychiatric care, a requirement to leave the state or be deported, submitting to electronic home confinement, and agreeing to a warrantless search.

Parole Violations and Revocations

If a condition of parole is legitimate, its violation by a parolee can result in the parolee being sent back to prison (parole revocation) to serve all or some of the balance of his original sentence. First, however, the parolee must be given notice of the claimed violation, a preliminary hearing to determine whether there is probable cause to believe a violation has occurred, and a final hearing before the parole board (sometimes the two hearings are held as one).

The parole violation hearing differs markedly from a trial, in that the prosecution need not prove "beyond a reasonable doubt" that the claimed violations occurred. In fact, if the basis for the revocation is a new offense, and the offense has not been charged or even when the parolee has been acquitted of the charge, the board may still consider the incident as a basis for revocation.

Due Process Requirements for Revocation Hearings

The United States Supreme Court has ruled that the following due process rights must be afforded parolees at a revocation hearing, held by a detached and neutral board:

  1. The parolee must get written notice of the claimed violations
  2. The board must disclose the evidence against the parolee.
  3. Parolees must be given an opportunity to present witnesses and documentary evidence and to be heard in person.
  4. The parolee must be given the opportunity to confront and cross-examine witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).
  5. The board must issue a written statement noting the evidence relied on and its reasons for revoking parole.

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

Right to Counsel?

The United States Supreme Court has not ruled that every parolee must be represented by counsel if the parolee so desires. However, some state constitutions so provide, and some state statutes also require representation. When no state constitution or statute applies, the question of appointed counsel must be decided by the parole board on a case-by-case basis. Counsel should be appointed when the parolee requests a lawyer and denies the claimed violation; or even when the parolee admits the violation, but wants to raise arguments in favor of mitigating the violation, making revocation inappropriate. Whether the parolee is capable of speaking effectively for himself should also be considered.

Getting Legal Help With Parole Revocations

If you are facing a parole revocation, get in touch with the local public defender or a private defense attorney right away. An experienced criminal defense attorney in your state will understand the workings of the state's parole authority, including the process for representing parolees facing revocation hearings.

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