Amicus Curiae Brief — Pennsylvania Bd. of Probation and Parole v. Scott

o_-

No. 97-581

~~

In the Supreme Court of the United States

OCTOBER TERM, 1997

PENNSYLVANIA BOARD OF PROBATION AND PAROLE,

Petitioner,

v.

KEITH M. SCOTT,

Respondent.

On Writ of Certiorari to the

Supreme Court of Pennsylvania

BRIEF OF CENTER FOR THE COMMUNITY INTEREST,

ANTI-VIOLENCE PARTNERSHIP, JUSTICE FOR ALL,

MARK KLAAS FOUNDATION FOR CHILDREN,

NATIONAL ORGANIZATION OF PARENTS OF

MURDERED CHILDREN, PARENTS OF MURDERED

CHILDREN OF NEW YORK STATE, PAROLEWATCH,

SAFE STREETS ALLIANCE, AND WOMEN AGAINST

VIOLENCE AS AMICI CURIAE IN SUPPORT OF

PETITIONER

Of Counsel ANDREW N. VOLLMER

ROGER L. CONNER Counsel of Record

Center for the Community MICHAEL PLOTNICK

Interest LYLE ROBERTS

Suite 800 TODD ZUBLER

919 18th Street, N.W. Wilmer, Cutler & Pickering

Washington, D.C. 20006 2445 M Street, N.W.

(202) 785-7844 Washington, D.C. 20037

(202) 663-6000

Counsel for Amici Curiae

January 9, 1998

WHETHER THE SEARCH OF SCOTT’S

RESIDENCE VIOLATED THE FOURTH

AUTHORIZING WARRANTLESS,

SUSPICIONLESS SEARCHES OF

PAROLEES IS VALID UNDER THE

FOURTH AMENDMENT BECAUSE IT IS

REASONABLY RELATED TO

LEGITIMATE PAROLE INTERESTS .... 9

A.

il

l. The Legitimate Interests Test

Should Apply Because

2. The Same Prudential Reasons

That Led to the Adoption of the

Legitimate Interests Test in the

Prison Context Apply to

Community Supervision

POD. nadebewoesayce 15

Policies of Conducting Warrantless,

Suspicionless Searches of

EE Se bwGeUNG ds oviia ce 16

l. The Court Should Adapt the

Factors Used in Applying the

Legitimate Interests Test in

Prison Cases to Community

Supervision Cases ....... 17

2. Consideration of the Requisite

Factors Demonstrates That a

Policy Decision To Conduct

Warrantless, Suspicionless

Searches Is Reasonably Related

to the Legitimate Interests of

Community Supervision .. 19

iil

C. The Warrantless, Suspicionless Search

of Scott’s Residence Satisfies the

Legitimate Interests Test ........ 24

Ill. | EVEN IF THE COURT DOES NOT ADOPT

THE LEGITIMATE INTERESTS TEST, THE

SEARCH OF SCOTT’S RESIDENCE WAS

REASONABLE UNDER THE FOURTH

TY PTTL 27

SEE Ae Vib vu dvaadéecreadsscccectvecees 27

iv

TABLE OF AUTHORITIES

CASES Page

Amiss v. State, 219 S.E.2d 28 (G2 '975) .......... u

Bell v. Wolfish, 441 U.S. S20(16 7% ©... oe eee. 16, 24

Bennis v. Michigan, 116 S. Ct. 994 (1996) ......... 3

Commonwealth v. Williams, 692 A.2d 1031

GE TEED ain db bs 0 dhcteeaeeels c06seck 8, 25

Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997), petition

for cert. filed (U.S. Dec. 5, 1997)

NE eS ee ee 3

Frink v. Arnold, 842 F. Supp. 1184 (S.D. lowa), aff,

43 F.3d 673 (8th Cir. 1994) ................ 24

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ......... 7

Griffin v. Wisconsin, 483 U.S. 868 (1987) ......... passim

Hudson v. Palmer, 468 U.S. 517 (1984) ........... 17

Johnson v. Rodriguez, 110 F 3d 299 (Sth Cir.),

cert. denied, 119 S. Ct. 559 (1997) ......... 3

Kansas v. Hendricks, 117 S. Ct. 2072 (1997) ....... 2

Lane v. Griffin, 834 F.2d 403 (4th Cir. 1987) ....... 24

Latta v. Fitzharris, 52\ F.2d 246 (9th Cir. 1975) .... 23

Mason v. State, 838 S.W.2d 657 (Tex. 1992) ....... .

Montana v. Egelhoff, 116 S. Ct. 2013 (1996) ....... 3

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

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .. passim

Pennsylvania Bd. of Probation and Parole v. Scott,

60 U.S.L.W. 3385 (U.S. Nov. 26, 1997) ...... 7

Procunier v. Martinez, 416 U.S. 396 (1974),

overruled on other grounds, Thornburgh

v. Abbott, 490 U.S. 401 (1989)... 2.2.2.2... 11,14

Schenk v. Edwards, 921 F. Supp. 679

CR ee I St a ee ie 24

Scott v. Pennsylvania Bd. of Probation and Parole,

668 A.2d 590 (Pa. Commw. Ct. 1995) ....... 26

Scott v. Pennsylvania Bd. of Probation and Parole,

CARS. EEE kedentukinccthebscs 8

TABLE OF AUTHORITIES—C ontinued

Page

State ex rel. Juvenile Dep't v. Rogers, 836 P.2d 127

ES a 4

State v. Cross, 487 So. 2d 1056 (Fla. 1986) ........ “

State v. Lampman, 724 P.2d 1092 (Wash. 1986) .... 4

Thornburgh v. Abbott, 490 U.S. 401 (1989) ........ 11,18

Turner v. Safley, 482 U.S. 78 (1987) ............. passim

United States v. Davis, 932 F.2d 752 (9th Cir. 1991) . 8

United States v. Giannetta, 909 F 2d 571

De Pn bcsbtbedies o die iceweaee oe 8

United States v. Hill, 967 F.2d 902 (3d Cir. 1992) ... 7

STATUTES

BO ED 6 Cicbbdcb vccdcsodens 26

61 Pa . Con. Stat. § 331.23 (1996) ............... 26

MISCELLANEOUS

MT bicte dad vidabebdn tb echdeeinctessse 19

Ed Barajas, Freeing the Invisible Giant, State Gov't

FD, FE EES cocsntcusceapecesec deccce 13

Karine Bland, Arizona Tough on Child-Sex Offenders,

New Law Allows Life Sentences, Arizona

SS errr 22

Boston's ‘Magic’ Formula, Boston Herald, Feb. 20,

SUEe ces Wbd ences ieee Ae ctactveetess< 21

Correctional Populations in the United States,

ide Ceidhtenbwenes 12, 13

Todd R. Clear & Anthony A. Braga, Community

Corrections, in Crime, 421 (James Q. Wilson

& Joan Petersilia eds.. 1995)............... 20

TABLE OF AUTHORITIES—C ontinued

Ronald P. Corbett et al., Operation Night Light: An

Emerging Model for Police-Probation

Partmership, Invitation to Change: 1996 Better

Government Competition on Public Safety

(GIDE 2 ive Bivecdack in dcseidce ctbgevevs 21,22

John J. Dilulio, Jr., Reinventing Parole and Probation,

Brookings Rev., March 22, 1997 ........... 13

Prevention, 3\ Val. U. L. Rev. 449 (1997) . . 13, 21, 22

Mark A.R. Kleinman et al.. BOTEC Analysis Corp.,

The Massachusetts Institute for a New

Commonwealth, Criminal Justice in

Massachussets: Putting Crime Control First,

GUE, GR sv ncvccdasnctudhissasdicanst 12, 14, 19

National Inst. of Justice, U.S. Dep’t of Justice, Jmpact

of Systemwide Drug Testing in Mulmomah

County, Oregon (June 1995) ............... 20

Dale G. Parent et al., National Institute of Justice, U.S.

Dep't of Justice, Responding to Probation and

Parole Violations, July 1994 ............... 12, 21

Joan Petersilia, A Crime Control Rationale for

Reinvesting in Community Corrections, 75

Pelee 5. STP GIS ccvcsccesccpessccsec: passim

Joan Petersilia and Susan Turner, Evaluating Intensive

Supervision Probation/Parole: Results of a

Nationwide Experiment, May 1993 ......... 20

Kerry L. Pyle, Note, Prison Employment: A

Long-Term Solution to the Overcrowding

Crisis, 77 B.U. L. Rev. 151 (1997) .......... 12

No. 97-581

In the Supreme Court of the United States

OCTOBER TERM, 1997

PENNSYLVANIA BOARD OF PROBATION AND PAROLE

Petitioner,

Vv.

KEITH M. SCoTT

Respondent.

On Writ of Certiorari to the

Supreme Court of Pennsylvania

BRIEF OF CENTER FOR THE COMMUNITY

INTEREST, ANTI-VIOLENCE PARTNERSHIP,

JUSTICE FOR ALL, MARK KLAAS FOUNDATION

FOR CHILDREN, NATIONAL ORGANIZATION OF

PARENTS OF MURDERED CHILDREN, PARENTS

OF MURDERED CHILDREN OF NEW YORK STATE,

PAROLEWATCH, SAFE STREETS ALLIANCE, AND

WOMEN AGAINST VIOLENCE

AS AMICI CURIAE IN SUPPORT OF PETITIONER

This amicus curiae brief is submitted in support of

petitioner, the Pennsylvania Board of Probation and Parole.

By letters filed with the Clerk of the Court, petitioner and

2

respondent have consented to the filing of this brief.’

INTEREST OF AMICI

The Center for the Community Interest, a project of

the American Alliance for Rights and Responsibilities, and

eight other community and victims’ rights groups file this

brief as amici curiae (“CCI and the crime victim groups”) in

support of the Pennsylvania Board of Probation and Parole

(the “Board”). CCI is a national non-profit public interest

organization founded to provide a voice for localities and

community groups on public safety and quality-of-life issues.

CCI helps cities, states, and civic associations to develop and

defend policies that strike a reasonable balance between the

rights of the individual and the needs of the larger

community, addressing issues such as school violence,

injunctions to control gangs, drug-related crime in low-

income housing, and restrictions on aggressive panhandling.

In doing this, CCI has developed a nationally recognized

expertise on legal issues affecting the safety and quality of

life of communities.

CCI has participated in a wide range of public safety

and quality-of-life cases before this Court and other courts

throughout the country.’ In addition, it has represented crime

This brief was prepared in whole by the counsel listed on the

cover. No person or entity, other than the amici curiae, their members,

and their counsel, made a monetary contribution to the preparation or

submission of this brief.

. Most recently, CCI, as the American Alliance for Rights and

Responsibilities, participated as amicus curiae before this Court in Kansas

v. Hendricks, 117 S. Ct. 2072 (1997) (defending civil commitment of

(continued...)

3

victim groups in helping to sustain “Megan’s Law” in the

Second Circuit’ and, in the Fifth Circuit, the right of crime

victims to communicate with parole boards.‘

CCI is extremely concerned that the decision of the

Pennsylvania Supreme Court, if ratified by this Court, would

dangerously restrict the ability of parole authorities across the

country to supervise and monitor convicted criminals

effectively and would thus compromise neighborhood safety.

ume y Bo remne for a reasonable and sensitive balance

indivi liberties and public safety and strong

believers in the goals of rehabilitation, CCI ap Arad that

the Pennsylvania court’s decision will have the untoward

effect of limiting the availability of parole for all offenders,

including those who could be successfully reintegrated into

the community.

CCI is joined as amici on this brief by eight anti-crime

and victims’ rights groups. The Marc Klaas Foundation for

Children is a national non-profit group that is in the forefront

of advocating child safety through education and public

awareness programs. Mr. Klaas founded the group after the

murder of his 12-year-old daughter, Polly, by a parolee. The

National Organization of Parents of Murdered Children, Inc.

provides emotional support to families and friends of

homicide victims. Its programs include Parole Block, which

. (...continued)

certain dangerous sexual offenders); Montana v. Egelhoff, 116 S. Ct.

2013 (1996) (supporting reasonable restrictions on criminal defenses

available to drunk drivers); Bennis v. Michigan, 116 S. Ct. 994 (1996)

(defending asset forfeiture programs to control street prostitution).

. Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997), petition

filed (U.S. Dec. 5, 1997) (No. 97-7023). atc

. Johnson v. Rodriguez, 110 F.3d 299 (Sth Cir.), cert. denied, 118

S. Ct. 559 (1997).

4

has successfully campaigned to keep convicted murderers

behind bars. ParoleWatch is a national non-profit program

that utilizes the Internet to inform the public when violent

felons are eligible for early release. The Safe Streets Alliance

is a national organization that supports “truth in sentencing”

laws and other measures to reduce violent crime.

The Anti-Violence Partnership is a non-profit

organization that addresses violence in Philadelphia through

victim services, crime prevention, and programs such as

Families of Murder Victims and the Student Anti-Violence

Education Program. Justice For All is dedicated to the

support and promotion of crime prevention and public safety

bills and the broadening of legal rights for the victims of

sexual and violent crimes. Parents of Murdered Children of

New York State, Inc. is a non-profit organization formed in

1983 by the parents of murder victims to protect the rights of

victims of violent crimes. Women Against Violence is a non-

partisan advocacy group for women crime victims devoted to

research, education, and political action. As advocates for the

victims of violent crime, many of whom have suffered at the

hands of paroled offenders, the co-amici organizations share

CCI’s grave concerns about the implications of the

Pennsylvania decision.

SUMMARY OF ARGUMENT

The warrantless, without reasonable suspicion

(“suspicionless”), search of Scott’s residence by parole

officers pursuant to a consent condition of his parole raises an

important Fourth Amendment issue that the Court should

address. The Pennsylvania Supreme Court in this case and

several other lower courts have held incorrectly that Griffin v.

5

Wisconsin, 483 U.S. 868 (1987), establishes a reasonable

suspicion standard for the constitutionality of searching a

parolee’s or probationer’s residence. This issue is a matter of

great significance to the day-to-day conduct of corrections

authorities because the reasonable suspicion standard

unnecessarily hampers the effectiveness of parole and

probation (“community supervision”) programs.

The legitimate interests test established by the Court

in evaluating prison policies that allegedly infringe the

constitutional rights of inmates should also be applied to

parole policies. Community supervision is a variation on

imprisonment and has become the primary means of

punishing and monitoring criminals under sentence. Just as

limitations on the constitutional rights of prisoners are

justified in prisons by the need to deter crime, rehabilitate

prisoners, and maintain institutional security, appropriate

limitations are justified in probation and parole systems by

the need to deter recidivism, monitor rehabilitation, and

maintain community security. A deferential standard of

review for determining the constitutionality of official

policies is needed in both contexts.

Community supervision systems have a substantial

interest in closely controlling and monitoring parolees and

probationers, including through the use of policies

authorizing warrantless, suspicionless searches. | Many

probation and parole programs are premised on the need to

conduct warrantless, suspicionless searches, and these

programs have been successful in reducing recidivism and

deterring crime. The consent condition in Scott’s parole form

and the suspicionless search of his residence were part of an

official policy of the Pennsylvania parole system and, as the

experience of other community supervision programs

evidences, advanced the legitimate interests of that system.

6

The search of Scott’s residence was therefore reasonable, and

did not violate the Fourth Amendment. For those reasons, the

Court should reverse the Supreme Court of Pennsylvania.

ARGUMENT

CCI and the crime victim groups urge the Court to

reverse the decision of the Pennsylvania Supreme Court and

hold that the search of Scott’s residence by Pennsylvania

parole officers was reasonable and did not violate Scott’s

Fourth Amendment rights. We first explain the significant

legal and practical reasons why the Court should decide the

Fourth Amendment issue. We then show that the Court

should apply the legitimate interests test from cases in the

prison area to evaluate whether parole or probation policies

violate a parolee’s or probationer’s constitutional rights.

Application of that test demonstrates that warrantless,

suspicionless searches are reasonably related to the legitimate

interests of community supervision systems and therefore are

reasonable under the Fourth Amendment. Finally, we explain

that, under the legitimate interests test, the search of Scott’s

residence did not violate the Fourth Amendment.

I. THE COURT SHOULD DECIDE WHETHER

THE SEARCH OF SCOTT’S RESIDENCE

VIOLATED THE FOURTH AMENDMENT.

The Court should address the Fourth Amendment

issue and hold that the search by the Pennsylvania parole

officers did not violate Scott’s Fourth Amendment rights.

That decision would dispose of the need to resolve the

principal question presented in this case concerning the

7

application of the exclusionary rule in parole revocation

hearings* and, as we now describe, would have significant

nationwide legal implications and consequences for the day-

to-day operation of state and federal parole and probation

systems.°

The Court should address the Fourth Amendment

issue because the Pennsylvania Supreme Court in this case

and other state and federal courts are misapplying this Court’s

Griffin decision.’ Griffin held that a warrantless search of a

probationer’s residence was reasonable within the meaning of

the Fourth Amendment because it was conducted pursuant to

a valid regulation of a state’s probation system, but many

lower courts are reading Griffin to require that a search of a

parolee, even one who consents to the search, must be based

on reasonable suspicion to be reasonable under the Fourth

Amendment.

’ The Court specifically invited briefing on the Fourth

Amendment issue. Its order granting certiorari raised the following

question: “Must a search of parolee’s residence be based on reasonable

suspicion to be valid under the Fourth Amendment where the parolee has

consented to the search as a condition of his parole?” Pennsylvania Bd

= ame ion and Parole v. Scott, 60 U.S.L.W. 3385 (U.S. Nov. 26,

For purposes of the issues discussed here, parole and probation

systems should be treated similarly. See United States v. Hill, 967 F.2d

902, 909 (3d Cir. 1992) (“There is ‘no constitutional difference between

probation and parole for the purposes of the Fourth Amendment.’”)

(quoting United States v. Harper, 928 F.2d 894, 896 n.1 (9th Cir. 1991));

see also Gagnon v. Scarpelli, 411 U.S. 778, 782 n.3 (1973) (“Despite the

undoubted minor differences between probation and parole, the

commentators have agreed that revocation of probation where sentence

has been imposed previously is constitutionally indistinguishable from the

revocation of parole.”).

: Griffin v. Wisconsin, 483 U.S. 868 (1987).

For example, in this case, the Pennsylvania Supreme

Court relied on one of its earlier decisions to determine that a

suspicionless search of a parolee is not reasonable under the

Fourth Amendment despite the existence of a consent to

search as a condition of parole. The earlier decision cited

Griffin and opinions of other state supreme courts construing

Griffin to decide that a search of a parolee must be based on

reasonable suspicion.* Two federal appeals courts reached

the same conclusion.’ This Court therefore needs to resolve

the Fourth Amendment question in this case to eliminate the

confusion among the lower courts about Griffin and the legal

principles governing searches in community supervision

programs.

This confusion would remain in many states even if

the Court held that the exclusionary rule does not apply in

parole revocation hearings. In these states, the state

constitution requires revocation hearings to exclude evidence

obtained in violation of the federal or state constitution."

. Scott v. Pennsylvania Bd. of Probation and Parole, 698 A.2d 32,

36 (Pa. 1997) (applying Commonwealth v. Williams, 692 A.2d 1031 (Pa.

1997)). In Williams, the court said: “We believe that this ‘middle

ground’ approach to warrantless searches pursuant to a signed parole

agreement comports with the Fourth Amendment protection afforded to

parolees by the United States Supreme Court in Griffin . . . and in our

sister states.” 692 A.2d at 1036-37 (citing Williams v. State, 902 S.W.2d

767 (Ark.), cert. denied, 116 S. Ct. 676 (1995); Pena v. State, 792 P.2d

1352 (Wyo. 1990); State v. Johnson, 748 P.2d 1069 (Utah 1987)).

. United States v. Davis, 932 F.2d 752, 758 (9th Cir. 1991) (“The

permissible bounds of probation search are governed by a reasonable

suspicion standard.”); United States v. Giannetta, 909 F.2d 571, 576 (ist

Cir. 1990) (holding that search of probationer without reasonable

suspicion “conflict{ed] with the dictates of Griffin”).

» See, e.g., State v. Cross, 487 So. 2d 1056 (Fla. 1986); Amiss v.

(continued...)

9

Thus, the Court should decide the Fourth Amendment issue

to clarify that the search of Scott’s residence was not

impermissible under the United States Constitution and that

the results of the search do not need to be excluded for that

reason.

Finally, as we discuss in more detail below, the

standard for applying the Fourth Amendment to community

supervision systems is a matter of great significance to the

day-to-day conduct of corrections authorities. Requiring

reasonable suspicion as a basis for conducting a parole

search, even when the parolee has consented to the search,

unnecessarily hampers the effectiveness of community

supervision programs and impairs law enforcement efforts.

Il. THE POLICY OF THE BOARD AUTHORIZING

WARRANTLESS, SUSPICIONLESS SEARCHES

OF PAROLEES IS VALID UNDER THE

FOURTH AMENDMENT BECAUSE IT IS

REASONABLY RELATED TO LEGITIMATE

PAROLE INTERESTS.

CCI and the crime victim groups urge the Court to

hold that the Board’s policy authorizing warrantless,

suspicionless searches of parolees is constitutional. The

Court should reach this holding by applying the legitimate

interests test currently used to assess prison policies that

allegedly infringe the constitutional rights of prisoners.

Under this standard of review, a community supervision

= (...continued)

State, 219 S.E.2d 28 (Ga. 1975); State ex rel. Juvenile Dep't v. Rogers,

836 P.2d 127 (Or. 1992); Mason v. State, 838 S.W.2d 657 (Tex. 1992);

State v. Lampman, 724 P.2d 1092 (Wash. 1986).

10

policy is constitutionally valid, and a search pursuant to the

policy is reasonable under the Fourth Amendment, if it is

reasonably related to legitimate community supervision

interests. Warrantless, suspicionless searches of supervisees

more than satisfy the reasonable relationship requirement

because strict controls and effective monitoring systems are &

crucial part of deterring recidivism by criminals under

sentence, whether the sentence is being served within or

outside of prison walls.

A. The Court Should Evaluate Alleged

Constitutional Infringements in Parole

Programs Under the Standard It Applies to

Prison Regulations and Policies.

The Court should use the occasion of this case to

apply to community supervision programs the legitimate

interests test it uses to evaluate allegations that official

conduct pursuant to a prison regulation or policy infringed an

inmate’s constitutional rights. In Griffin, the Court alluded to

this possibility but did not decide whether the test should be

applied to probation or parole regulations.'' As we now

describe, the same reasons and concerns that led the Court to

adopt the legitimate interests test in the prison context apply

equally in the parole and probation context.

" Griffin, 483 U.S. at 874 n.2.

1, The Legitimate Interests Test Should

Apply Because Community

Supervision and Prison Have Similar

Problems and Objectives.

The Court's approach in prison cases, when an inmate

alleges that a prison regulation or policy infringes a

constitutional right, is to find that the regulation or policy “is

valid if it is reasonably related to legitimate penological

interests.” Turner v. Safley, 482 U.S, 78, 89 (1987), The

legitimate interests test balances the need to protect the

constitutional rights of prisoners with the recognition that

“courts are ill equipped to deal with the increasingly urgent

problems of prison administration and reform,” which are

“not readily susceptible of resolution by decree.” Procunier

v. Martinez, 416 U.S, 396, 404-05 (1974), overruled on other

grounds, Thornburgh v. Abbott, 490 U.S, 401 (1989).

For several reasons, the Court should apply the same

approach to community supervision policies, such as the

policy of conducting warrantless, suspicionless searches in

this case, when a supervisee claims a constitutional

infringement, First, the Court has always recognized that

probation and parole are variations on imprisonment.'’ The

similarity between community supervision and prison is

reflected in the fact that probationers and parolees have only a

conditional liberty interest dependent on observance of

" /d at 874 (“Probation, like incarceration, is ‘a form of criminal

sanction imposed by a court upon an offender after verdict, finding, or

plea guilty’... .") (quoting G, Killinger et al., Predation and Parole in

the Criminal Justioe Syatem 14 (1976)), Morrissey v. Brewer, 408 U.S.

471, 477 (1972) (Rather than being an ad hoe exercise of clemency,

parole is an established variation on imprisonment of convicted

oriminals,”).

" Griffin, 483 US. at 874 ("To © greater or lesser degree, it Is

Sales Cae Seana oe Se oe See

they do not enjoy ‘the absolute liberty to which every citizen is entitled,

but only . See ae ee

— Yrebaten restrictions."") (quoting Morrissey v. Brewer, 408 US.

" See Joan Petersilia, A Crime Control Rationale for Reinvesting in

Community Corrections, 75 Prison 1, 479, 480-81 (1995), Dale GO. Parent

increase in prison populations from 1985 to 1995); see also Kerry L.

Pyle, Note, Prion Employment A Long-Term Solution to the

Overerowding Cras, 77 BU. L. Rev, 151, 192 (1997) (discussing

problem of prison overcrowding)

” Nationally, the total spent on corrections in fiscal year 1995

exceeded $21 billion, three times the expenditures from the early 1980s.

See Mark AR. Kleinman et al, BOTEC Analysis Corp,, Massachusetts

Inst. for a New Commonwealth, Criminal Justice in Massachusetts

Putting Crime Control First, Oct, 1996, at 20 (hereinafter “Crim. Justice

in Mass”),

~

streets under some type of community supervision.'’ In 1985,

approximately 2.3 million people were under community

1, By 1995, that number had increased to almost

3.8 million,

Similarly, the increased reliance on community

under sentence live in our communities.” The number of

people sentenced to community supervision in lieu of prison

for commission of a violent crime, that is, homicide, sexual

assault, robbery, and assault, jumped forty-five percent from

1989 to 1993." Also, offenders on parole and probation often

are serial offenders, who commit a disproportionate number

of violent crimes.”

Third, the objectives of community supervision are

substantially similar to the objectives of prisons. Just as the

limitation on the constitutional rights of prisoners is justified

in prisons by the need to deter crime, rehabilitate prisoners,

and maintain institutional security,” appropriate limitations

are justified in probation and parole systems by the need to

4 Barajas, Freeing the invisible Giant, State Gov't News, Aug

1907, at 17.

© Bureau of Justice Statistics, supra, at $, 8, 128

” See Petersilia, supra, at 480-0)

* — See John J. Dilulio, Jr, Reinventing Parole and Probation,

Brookings Rev,, March 22, 1997, at 40,

” See David Kennedy, Pulling Levers Chronic Offenders, High-

Crime Settings, and a Theory af Prevention, 31 Val. UL. Rev. 449, 459.

Sa Cie Ss Ges Gane paint © Gon © ond eaten

S See O'Lone v Estate of Shabass, 442 U8. 342, 148 (1987),

4

deter recidiviem, monitor rehabilitation, and maintain

Fourth, because of the explosive growth in the

effective oversight are needed to meet the objectives of

community supervision Probation and parole agencies need

the authority to impose intensive supervision because, when

supervision is not adequate, more crime oceurs, rehabilitation

fuils, and recidiviem increases. Failed parolees and

In sum, the explosive growth of the probation and

parole systems in the United States over the past twenty years

has led to the same type of “complex and intractable”

problems that this Court recognized in the prison system and

that led to the legitimate interests test for evaluating prison

policies allegedly violating a prisoner's constitutional rights.”

The running of a prison is “an inordinately difficult

- See Petersilia, supra, at 482-8)

- See Proeunier, 416 U.S. a 405,

° See O Lone, 482 U.S. at 149-90.

constitutional serutiny would undermine the ability of

authorities to fulfill their obligation to protect communities,

proper

deference and discretion to parole and probation officials

similarly would allow the courts to avoid a series of cases

alleging comparable claims.

i. The Legitimate Interests of Community

Including Policies of Conducting

Warranties, Suspicioniess Searches of

Supervisees,

In this part of the brief, we first explain that the

legitimate interests test may be applied to a supervisee's

Fourth Amendment claim. Next, we discuss the four-factor

approach the Court has developed to apply the legitimate

interests test to official prison conduct and the ways to adapt

that approach to probation and parole cases. We then apply

the factors to warrantless, suspicionless searches to show that

such searches are reasonably related to the legitimate interests

of community supervision.

The legitimate interests test can and should be used to

review Fourth Amendment as well as other constitutional

claims asserted by a parolee or a probationer. Although

" See Bell vy. Wolfish, 441 U.S, $20, $29 (1979) (noting that Court

had “several decisions consider{ing) constitutional challenges to prison

conditions of practices by convicted prisoners” in previous five terms)

17

Fourth Amendment issues do not arise in prison cases,”* they

do arise in community supervision eases because, under

Griffin, “\a) probationer's home, like anyone else’s, is

;

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The factors used to apply the legitimate interests test

to prison regulations and policies should be used, with

appropriate modifications, to evaluate constitutional

challenges to official conduct in parole and probation cases.

The Turner court set out four factors to use in evaluating

whether a challenged regulation or policy is “reasonably

“ fee Hudson v. Palmer, 408 US. $17, $90 (1984) (holding

prisoner has no reasonable expectation of privacy in prison cell)

» See Griffin, 463 US, 873,

” Uriffin's holding that the Wisconsin statute was constitutional

under the “special needs” standard does not foreclose the possibility that

the more deferential legitimate interests test should apply in this case

18

related” to legitimate interests: first, whether a rational

connection exists between the regulation or policy and the

legitimate governmental interest invoked as a justification for

the action; second, whether alternative means of exercising

the right allegedly being infringed remain open for the

inmate; third, whether accommodation of the right allegedly

being infringed will have an adverse impact on guards, other

inmates, and prison resources; and finally, whether obvious,

easy alternatives to the regulation or policy exist.’

Although the factors are specific to “prisoner rights”

litigation,” they provide substantial guidance on how to

establish the “reasonably related” connection in community

supervision litigation. The “rational connection,” “alternative

means,” and “easy alternative factors” are all relevant in

deciding whether a regulation or policy of a community

supervision system is reasonably related to the legitimate

interests of the system and therefore constitutional. The

“adverse impact” factor is more specifically tailored to a

prison setting, but could be adapted to involve an evaluation

of whether the accommodation of a right will have an adverse

impact on the relevant community.

Although prisons and community supervision

systems have similar legitimate interests and courts should

apply similar factors in evaluating whether a regulation or

policy is reasonably related to those legitimate interests, this

does not mean that a court would necessarily reach the same

conclusion concerning the validity of a regulation or policy

affecting prisoners and community supervisees. For example,

in O'Lone, this Court held that a prison policy affecting the

ability of Muslim inmates to attend religious services was

n Turner, 482 U.S. at 89-90.

32 Thornburgh v. Abbott, 490 U.S. 401, 414 (1989).

19

reasonably related to legitimate penological interests.» It is

less likely that a policy decision faving a similar effect on a

group of probationers or parolees would satisfy the

“reasonably related” factors. The factors need to be applied

on a case-by-case basis with the relevant differences between

prisons and community supervision systems taken into

account.

2. Consideration of the Requisite

Factors Demonstrates That a Policy

Decision To Conduct Warrantless,

Suspicionless Searches Is Reasonably

Related to the Legitimate Interests of

Community Supervision.

A policy decision to conduct warrantless,

suspicionless searches, when examined using the requisite

factors, is reasonably related to the legitimate interests of

community supervision. The essential premise is that

effective community supervision programs require extremely

close monitoring and control of probationers and parolees.*

Thus, a policy of conducting warrantless, suspicionless

searches has a compelling, and not merely a rational,

connection to the legitimate interests of community

supervision.

“The key concept in community corrections is

- 482 U.S. at 353.

a See, e.g., Petersilia, swora, at 488 (noting “emerging consensus”

on moving toward intensive supervision in monitoring of community

supervisees); Ed Barajas, Community Justice: Bad Ways of Promoting a

Good Idea, Perspectives, Summer 1997, at 18 (noting need for

intermediate sanctions).

20

‘intermediate sanctions,’ programs that provide more

intensive supervision—more punishment, more control, and

perhaps more rehabilitation—than conventional probation or

parole, but cost less than imprisonment.” Crim. Justice in

Mass., supra, at 22-23. Intensive supervision is a flexible

concept, generally providing for a wide variety of rigorous

conditions aimed at closely monitoring the daily activities of

the supervisees.*°

“[S]olid empirical evidence” proves the benefits of

intensive supervision.” Programs involving strict conditions,

intensive surveillance, and mandatory treatment have proven

effective in lowering recidivism.”

As more states and localities have recognized the need

for intensive supervision programs, they have begun to

implement these programs to meet the goals of community

supervision. The most innovative and successful of these

programs use warrantless, suspicionless searches to oversee

the activities of their supervisees.

For example, Oregon has developed a program called

- See Joan Petersilia & Susan Tumer, Evaluating Intensive

Supervision Probation/Parole: Results of a Nationwide Experiment, May

1993, at 1.

” See Petersilia, supra, at 489.

” See id; Todd R. Clear & Anthony A. Braga, Community

Corrections, in Crime 421, 427 (James Q. Wilson & Joan Petersilia eds.,

1995). Although some studies have shown that intensive supervision

programs have on occasion failed to meet their stated goals, more recent

studies have concluded that the programs generally failed because

governments did not commit the requisite resources to administer the

programs effectively. See Petersilia, supra, at 489; National Inst. of

Justice, U.S. Dep't of Justice, Impact of Systemwide Drug Testing in

Multnomah County, Oregon (June 1995). Thus, what were intended to be

intermediate sanctions, in practice, did not provide any more surveillance

than traditional community supervision. See Petersilia, supra.

21

“Drug Reduction on Probation” based on the use of frequent,

random drug testing as an effective monitoring tool.*

Oregon combines drug testing with automatic short and

immediate jail stints for failed tests.** “Practitioners believe

that the [program has] reduced the number and rate of third

and subsequent failed drug-use tests.” Responding to

Probation and Parole Violation’, supra, at 19. One county

reported that the program reduced the percentage of positive

random drug tests from sixty-one to fifteen percent.

Localities in Boston have implemented two

innovative programs to stop crime among gang members by

targeting known offenders under supervision with intensive

surveillance. Operation Ceasefire began in 1996 as an

attempt to intervene in gang areas with recent histories of

violent homicides. The strategy, in part, uses various

surveillance methods by community supervisors, including

frequent home visits and random stops, to create a “heavy

police presence.”

Similarly, Operation Night Light, a connected

program, coordinates the efforts of community supervisors

and police to ensure that juveniles under community

supervision obey the conditions of their supervision.”

Supervisors use random home visits to look for the

individual, area inspections, and random spot searches to

a See Responding to Probation and Parole Violations, supra, at

19.

- See id. at 20.

° See Kennedy, supra, at 463.

4! See id

= See Ronald P. Corbett et al., Operation Night Light: An

Emerging Model for Police-Probation Partnership, Invitation to Change:

1996 Better Government Competition on Public Safety 105, 109 (1996).

22

control their supervisees’ activities.”

The success of these Boston programs has been

dramatic. In the short time the programs have existed, youth

violence in Boston has dropped significantly.“ President

Clinton noted the merits of Boston’s creative solutions to

violence, saying “[w]e want to give every city the tools to do

what Boston has done.” Boston's ‘Magic’ Formula, Boston

Herald, Feb. 20, 1997, at 024.

Another effective program using intrusive methods of

surveillance monitors sexual predators on lifetime probation

in Arizona. This program uses periodic polygraph tests,

home searches, and plethysmorgraph testing to monitor the

probationers. The continuous observation of these offenders

has led to a remarkably low recidivism rate of 1.4 percent.*

Other jurisdictions view Arizona’s approach as a model to

follow. The success of all of these innovative programs

depends upon the ability to use intrusive surveillance,

demonstrating the necessary rational connection between

warrantless, suspicionless searches and the legitimate

interests of community supervision systems.

Two other factors in the “reasonably related” test also

indicate that warrantless, suspicionless searches are

reasonably related to the legitimate interests of community

supervision. Not allowing warrantless, suspicionless searches

of a supervisee’s home would have an adverse impact on the

- See id. at 111, 114.

= For an in-depth look at Operation Night Light and its success,

see Operation Night Light, supra. A complete description and discussion

of Operation Ceasefire can be found in Kennedy, supra, at 463-68.

= See Karine Bland, Arizona Tough on Child-Sex Offenders, New

Law Allows Life Sentences, Ariz. Republic, Apr. 21, 1997, at Al.

- See id.

23

community, as demonstrated by the successful lowering of

recidivism rates accomplished by the programs utilizing the

warrantless, suspicionless searches described above. In

addition, there are no easy alternatives to a home search for

determining many types of violations of supervision

conditions. As the Ninth Cireuit stated in upholding

warrantless, suspicionless searches of parolees’ homes:

[I]t may be impossible to determine whether a

parolee is using alcohol or narcotics, whether

he is keeping weapons or contraband in his

home, whether he is using or preparing to use

his home as a base for improper or unlawful

activities, whether he is making a real effort to

obtain employment, or the general nature of

his home environment, without conducting

some type of search.”

Latta v. Fitzharris, 521 F.2d 246, 250 (9th Cir. 1975) (en

banc). The element of surprise and the deterrence effect

created by suspicionless searches are extremely important

aspects of a successful monitoring program.

The final factor, whether alternative means for

exercising the right remain open to the community

supervisee, is difficult to apply in the Fourth Amendment

context because the constitutional right provides that a person

cannot be searched in certain circumstances. This means that

it is unlikely that a person has an alternative method of

exercising a Fourth Amendment right when officials need to

conduct a search in a particular manner and do not have an

easy alternative consistent with the purposes and policies of

the community supervision program. Nonetheless, as long as

a warrantless, suspicionless search is pursuant to and part of a

valid community supervision system, overall consideration of

the four factors indicates that the search is reasonably related

24

to legitimate parole interests.

As in Griffin, the appropriate Fourth Amendment

protection for community supervisees is that searches be

“reasonable.” The legitimate interests test gives probation

and parole officials more flexibility to define what is

reasonable and confirms that warrantless, suspicionless

searches in accordance with the policies and objectives of a

community supervision program are reasonable under the

Fourth Amendment.

C. The Warrantless, Suspicionless Search of

Scott’s Residence Satisfies the Legitimate

Interests Test.

We now apply the legitimate interests test described

above to the search of Scott’s residence. As the prison cases

show, the test can be applied to a parole policy decision as

well as a formal parole regulation. The Court has

acknowledged that both the “policies and practices” of prison

administrators should be accorded considerable deference."”

Although Turner addressed prison regulations promulgated

by the Missouri Department of Corrections, the Court

suggested that the legitimate interests test applies to all prison

regulations or policies, including the “day-to-day judgments

of prison officials.” 482 U.S. at 89. Several lower courts

have agreed that the standard of review should be applied to

all actions taken by prison officials.“ In Lane v. Griffin, 834

re See Bell, 441 U.S. at 547.

aa See also Schenk v. Edwards, 921 F. Supp. 679, 684 (E.D. Wash.

1996) (written or unwritien prison policy prohibiting certain inmate

interaction subject to legitimate interests test); Frink v. Arnold, 842 Ff

(continued...)

25

F.2d 403 (4th Cir, 1987), Justice Powell sitting by

designation stated:

The fact that the restriction at issue here arose

from a policy decision made by the

superintendent of the prison, rather than a

regulation, does not require a different

analysis, .. . [T)he reasons articulated by the

Court in Turner and O'Lone for applying a

‘reasonably related’ standard to prison

regulations apply with equal force to a policy

decision made by a prison official.

Id. at 406 (upholding restriction on ability of inmate to offer

religious service), Just as in the prison context, policy

decisions by parole officials should also be subject to the

legitimate interests test.

The search of Scott's residence by state parole officers

was pursuant to a policy of the Pennsylvania parole system.

The Board authorized both the inclusion of the search consent

as a condition of the terms of Scott's parole and the

subsequent warrantless, suspicioniess search of Scott's

residence. As noted by the Supreme Court of Pennsylvania,

“the General Assembly has given the Parole Board broad

powers to supervise a parolee and to impose regulations on a

parolee's conduct upon release that the Commonwealth could

not impose on ordinary citizens.” Commonwealth v

Williams, 692 A.2d 1031, 1036 (Pa. 1997). The applicable

Pennsylvania statute states that, “[i)n addition to the power to

make general rules and regulations hereby granted, the

[Parole] board may .. . preseribe special regulations for

« (.. continued)

Supp. 1184, 1188 (S.D. lowa), afd 4) F.dd 67) (8th Cir, 1994)

(applying legitimate interests test to unwritten prison policy governing

inappropriate writings)

particular parolees.” 61 Pa, Cons, Stat. § 331.23 (1996), A

parolee must abide by any conditions imposed by the Parole

Board and a violation of the conditions may cause his

detention or return to a correctional institute. 37 Pa. Code §§

63.3, 63.5(a).

As part of its special regulations power, the Board

included the search consent as one of the conditions in its

pre-printed “Conditions Governing Parole/Reparole” form.

J.A. 7a. A prisoner could not go on parole without agreeing

to the conditions.

As Agent Mundro testified at Scott's parole

revocation hearing, the agents’ understanding of their search

powers under the special condition were that Scott's approved

residence could be searched without his permission. Secor v

Pennsylvania Bd of Probation and Parole, 668 A.2d 590,

595 (Pa, Commw, Ct. 1995), At the time of the search of

Scott's residence, Pennsylvania had no controlling legislative,

administrative, or judicial precedent limiting a reasonable

search of a parolee conducted pursuant to a consent condition

other than the limitation that a search be in connection with

verifying and effectuating compliance with the conditions of

parolee. As evidenced by the facts in this case, the Board and

its agents, as a matter of policy and practice, defined

“reasonable” to include without reasonable suspicion.

The Board's decision to use its special conditions

power to create a search consent condition allowing for

suspicionless searches is exactly the type of policy decision

that courts have subjected to the legitimate interests test in

prison cases and therefore is entitled to deference here. As

explained in Section I1(B), a warrantless, suspicionless search

of a parolee conducted pursuant to a parole policy or

regulation is reasonably related to the legitimate interests of a

parole system. The search of Scott's residence satisfied these

during the search was not required to be excluded from his

parole revocation hearing. It therefore should reverse the

decision of the Pennsylvania Supreme Court.

Respectfully submitted,

Counsel ANDREW N. VOLLMER

ROGER L. CONNER Counsel of Record

Center for the Community MICHAEL PLOTNICK

Interest LYLE Ropenrs

919 18th Street, NW. Wilmer, Cutler & Pickering

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