Amicus Curiae Brief — Samson v. California

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No. 04-9728 Thee tll

IN THE | ROW oS

- OFFICE OF THE CLERK |

Supreme Court of the Anited States |

DONALD CURTIS SAMSON,

Petitioner,

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to

the California Court of Appeal,

First Appellate District

BRIEF OF AMICUS CURIAE

CITIZENS UNITED FOR

REHABILITATION OF ERRANTS

IN SUPPORT OF PETITIONER

ROBERT WEISBERG

Counsel of Record

STANFORD LAW SCHOOL

559 Nathan Abbott Way

Stanford, CA 94305

(650) 723-0612

Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. -— (202) 789-0096 -— WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the Fourth Amendment prohibits police from

conducting a warrantless search of a person who is subject

to a parole search condition, where there is no suspicion of

‘criminal wrongdoing, and the sole reason for the search is

that the person is on parole?

(i)

TABLE OF CONTENTS

Page

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I. Modern Criminology Has Identified The

Crucial Process Of Desistance From

Criminal Behavior As The Key To An

Offender’s Successful Reentry Into

Society, And This Process Of Desistance Is

Undermined By The Random Police

Searches Of Parolees That The California

Courts Have Adopted ...........c.sscsccssssssssosesssssssees 3

II. Denial Of All Fourth Amendment Rights

To Parolees Undermines The Trust In The

Fairness Of The Criminal Justice System

Modern Social Science Has Demonstrated

To Be Vital To Inducing A Normative

Willingness To Comply With The Law............ 7

SEE, OS ETE nee SRST - Pe 9

(iii)

roanqgere eg,

TABLE OF AUTHORITIES

CASES

Morrissey v. Brewer, 408 U.S. 471 (1972)........0-e000

MISCELLANSOUS

Peter J. Burke & Jan E. Stets, Trust and

Commitment Through Self-Verification,

62 Soc. Psychoi. Q. 347 (1999)..........4: linensmennesenens

Stephen Farrall, Rethinking What Works

With Offenders: Probation, Social

Context and Desistance From Crime

Stephen Farrall, Social Capital and

Offender Reintegration: Making

Probation Desistance-Focused, in After

Crime and Punishment: Pathways to

Offender Reintegration (Shadd Maruna

& Russ Immarigeon eds. 2004) ............ssssereees

Stephen Farrall & Shadd Maruna,

Desistance-Focused Criminal Justice

Policy Research: Introduction To A

Special Issue on Desistance From

Crime and Public Policy, 42 How. J. of

IR SURED, Se Gee cccnctennnsscntsccsseicrinmesneemenes

Joseph P. Forgas, Epilogue, Everyday

Understanding and Social Condition, in

Social Cognition Perspectives on

Everyday Understanding (Forgas, ed.

SNEED cacevensnaserncensevessnsensensnentananseneavennsinentocensemsseseses

Harold Garfinkel, Conditions of Successful

Degradation Ceremonies, 61 Am. J. of

Se Ee ee priertntiereectnnntceninnenmnncnenmatespeenctecemmeste

TABLE OF AUTHORITIES—Continued

Herbert C. Kelman & V. Lee Hamilton,

Crimes of Obedience Toward a Social

Psychology of Authority and

Fe 9

John Laub & Robert Sampson, Shared

Beginnings, Divergent Lives (2008)............0-0++ 6

John Laub & Robert Sampson,

Understanding Desistance From Crime,

28 Crime and Justice: A Review of

Research 1 (M. Tonry ed. 2000) ............c.cssssseseees 4

Shadd Maruna, Making Good: How Ex-

Convicts Reform and Rebuild Their

I ennnttctanemenintitineemennmeniens 4

Tom Meisenhelder, Becoming Normal:

Certification as a Stage in Exiting from

Crime, in Deviant Behaviour: An

Interdisciplinary Journal (1982) ...........s-0-0+0 6

Stephen C. Richards & Richard S. Jones,

Beating the Perpetual Incarceration

Machine: Overcoming Structural

Impediments to Re-entry, in After

Crime and Punishment: Pathways to

Offender Reintegration (Shadd Maruna

& Russ Immarigeon eds. 2004) ...........sssseserees 6

Judith Rumgay, Scripts for Safer Survival:

Pathways Out of Female Crime, 43 How.

J. of Crim. Just. 405 (2004)...........ccccsssssssssseeseeeees 6

Sheldon Stryker, The Past, Present, and

Future of an Identity Theory, 63 Soc.

Pampatent. G, BBG GER ED cccscscscsescscssccnenssessenessscecsesanne 4

IN THE

Supreme Court of the United States

No. 04-9728

DONALD CURTIS SAMPSON,

Petitioner,

Vv.

PEOPLE OF THE STATE OF CALIFORNIA

Respondent.

On Writ of Certiorari

to the California Court of Appeal,

First Appellate District

BRIEF OF AMICUS CURIAE

CITIZENS UNITED FOR REHABILITATION OF

ERRANTS IN SUPPORT OF PETITIONER

INTEREST OF AMICUS

Amicus Curiae Citizens United for Rehabilitation of

Errants (“CURE”) is a non-profit membership organization

of families of prisoners, former prisoners and other con-

cerned citizens.’ CURE’s mission is to assist former offend-

' This amicus brief is filed with the consent of the parties, and letters

of consent are being filed with the Clerk of the Court in accordance

with this Court’s Rule 37.3(a). Pursuant to Rule 37.6, the amicus

submitting this brief and its cou..sel hereby represent that neither

party to this case nor their counse} authored this brief in whole or in

ers in their reentry into society, to provide them all the

rehabilitative opportunities they need to turn their lives

around, and to enhance public awareness of the rights and

needs of former prisoners as they embark on the path

toward law-abiding lives and careers. Through a national

network of state chapters, CURE is involved in promoting

enlightened state and federal legislation on a multitude of

issues concerning reform in prison, probation, and parole.

This case concerns whether a State may, consistent with

the Fourth Amendment, subject parolees to suspicionless

searches at any time. Subjecting parolees to such searches

thwarts rehabilitation by undermining the parolee’s ability

to adopt the prospective attitude of a law-abiding citizen.

Rehabilitation requires the parolee to conceive of himself as

a responsible citizen. But suspicionless searches link the

parolee to his criminal past, randomly subjecting him to an

indignity and intrusion that is both characteristic of prison

life and wholly at odds with being a responsible citizen.

Amicus CURE has an interest in ensuring that the parolees

are not subjected to such random searches and other indig-

nities that undermine CURE’s mission of rehabilitation.

SUMMARY OF ARGUMENT

The unquestionable goal of parole, to serve as a transi-

tion for the former offender to a law-abiding life, is thwart-

ed by an unregulated police power to subject the former

offender to random searches. The process of achieving

desistance from criminal behavior requires that the parolee

adopt a prospective attitude of law-abidingness, reflected in

a self-chosen identity as a responsible citizen. Continued

exposure to random searches of the sort associated with

prison life denies the parolee a reasonable opportunity to

achieve this new identity as an autonomous, civic-motivated

part, and that no person other than amicus paid for or made a mone-

tary contribution toward the preparation and submission of this

brief.

citizen. In addition, police searches without any individual-

ized justification or suspicion undermine the individual’s

trust in the fair processes of law, a trust that may be more

efficacious than the deterrent mechanisms of the criminal

law in inducing the parolee to commit to voluntary compli-

ance with legal authorities.

ARGUMENT

I. Modern Criminology Has Identified The Crucial

Process Of Desistance From Criminal Behavior As

The Key To An Offender’s Successful Reentry Into

Society, And This Process Of Desistance Is

Undermined By The Random Police Searches Of

Parolees That The California Courts Have Adopted.

A major, indeed probably the major, new theme of

contemporary criminology is the notion of desistance. Em-

pirical research concerning the rehabilitation of former

offenders has established the principle that offenders do not

simply or suddenly end their proclivity toward criminal

behavior. Indeed, conventional social science explanations

for offender behavior have proved inadequate to explain

why so many offenders cease to commit crimes even while

outside of prison and while still physically able to commit

crimes. Under this newer paradigm, many offenders un-

dergo a process called desistance, which involves the cre-

ation of a new or renewed “pro-social” identity. Stephen

Farrall & Shadd Maruna, Desistance-Focused Criminal

Justice Policy Research: Introduction to A Special Issue

on Desistance from Crime and Public Policy, 42 How. J. of

Crim. Just. 358, 358-359 (2004).

Desistance theory has led criminologists to conclude that

the most constructive reentry strategy for parolees is to

enhance their ability to look forward to a new commitment

to values of social citizenship, rather than remain locked in

their former criminogenic identity. Stephen Farrall, Re-

thinking What Works With Offenders: Probation, Social

Context And Desistance From Crime (2002). Desistance

requires the offender psychologically to separate from his

former persona. Thus, to enhance the reintegration of

former offenders, society must offer ways of reducing the

stigma of diminished legal status that reinforces the former

crime-focused self. Shadd Maruna, Making Good: How Ex-

Convicts Reform And Rebuild Their Lives 165 (2001). The

goal of desistance is the creation of a new autonomous

citizen who internalizes the social good by accepting the

challenges of a full civic identity. Sheldon Stryker, The

Past, Present, and Future of an Identity Theory, 63 Soc.

Psychol. Q. 284, 288-289 (2000).

Desistance research has shown that success in reentry

requires the offender to change from a passive, rational-

izing voice in which he describes his past as one of

entrapment in deviance to an active voice by which he ar-

ticulates his autonomy in choosing a self-determined con-

structive life. Maruna, supra, at 7-8. Desistance is

enhanced by such concrete components of normal civic life

as marriage, employment, or military service. John Laub &

Robert Sampson, Understanding Desistance From Crime,

28 Crime and Justice: A Review of Research 1 (M. Tonry

ed. 2000). But recent research confirms that establishment

of a new civic-minded identity, with social reinforcement of

that identity, is as crucial as any material restoration of

rights.

A vital step in that process of reinforcement is the

recapture of the common right of privacy and anonymity

enjoyed by all citizens who avoid giving off any present

basis for reasonable suspicion that they are engaged in

criminal activity. Christopher Uggen, Jeff Manza & Angele

Behrens, Less Than the Average Citizen—Stigma, Role

Transition, and The Civie Reintegration of Convicted

Felons, in After Crime and Punishment: Pathways to

Offender Reintegration 261, 262 (Shadd Maruna & Russ

Immarigeon eds. 2004). To be successful in reentry, the

offender must reemerge into virtuous participation in the

civic world. /d. at 263. A major threat to that reemergence

is the loss of privacy and anonymity that not only deprives

the parolee of the publicly visible rights of citizenship, but

also reinforces the stigmatized identity associated with the

previous offending self. Jd. at 276-277. That continued

stigma after reentry has been condemned as “invisible

punishment.” Jeremy Travis, /nvisible Punishment: An

Instrument of Social Exclusion, in Invisible Punishment:

The Collateral Gonsequences of Mass Imprisonment 15-36

(Marc Mauer and Meda Chesney-Lind eds. 2002).

This research has vindicated, through social science,

what this Court had earlier affirmed as a principle of law:

The liberty of a parolee enables him to do a wide

range of things open to persons who have never been

convicted of any crime. The parolee has been re-

leased from prison based on an evaluation that he

shows reasonable promise of being able to return to

society and function as a responsible, self-reliant per-

son. Subject to the conditions of his parole, he can be

gainfully employed and is free to be with family and

friends and to form the other enduring attachments of

normal! life.

Morrissey v. Brewer, 408 U.S. 471, 482 (1972). For these

reasons, the Court concluded that the parolee must enjoy

“many of the core values of unqualified liberty.” /bid.

The psychological processes of desistance require that

the offender decide that his criminal behavior is separate

from his true self. Stephen Farrall, Social Capital and

Offender Reintegration: Making Probation Desistance-

Focused, in After Crime and Punishment: Pathways to

Offender Reintegration 63 (Shadd Maruna & Russ

Immarigeon eds. 2004). The successful parolee is the one

who manages the psychological challenge of viewing his

virtuous identity as the good self that “what was supposed

6 '

to be all along.” Harold Garfinkel, Conditions of Successful

Degradation Ceremonies, 61 Am. J. of Soc. 420, 421 (1956).

“The plan to exit from crime is in large part founded on the

self as noncriminal.” Tom Meisenhelder, Becoming

Normal: Certification as a Stage in Exiting from Crime, in

Deviant Behaviour: An Interdisciplinary Journal, 137, 140

(1982). The offender must achieve what criminologists call

the “agency,” a power which is “oriented toward the future

... projective actions in the transition from adolescence to

adulthood advance a new sense of self and a new identity as

a desister from crime or, more aptly, as a family man, hard

worker, and good provider.” John Laub & Robert

Sampson, Shared Beginnings, Divergent Lives 146 (2003).

These goals are undermined by the power of a police

officer, acting solely on the knowledge that the person is a

parolee, to treat him as a pre-designated criminal self-

suspected of criminal behavior. The continuing expectation

of and public humiliation resulting from unregulated police

searches destructively reinforce the parolee’s “memory

traces” of his earlier deviant and incarcerated life, and the

self-perceived and publicly attributed stigma deprive him of

the social feedback prisoners need to focus on a future, not

a past, identity. Stephen C. Richards and Richard S. Jones,

Beating the Perpetual Incarceration Machine: Overcoming

Structural Impediments to Re-entry, in After Crime and

Punishment: Pathways to Offender Reintegration 201, 203

(Shadd Maruna & Russ Immarigeon eds. 2004).

If the older criminology simply assumed a moral or

cognitive deficiency, the new desistance paradigm calls for

activation or reactivation of existing abilities. “Thus, in

staking her claim to a conventional identity, the offender

commits herself to the ethical code.of conduct by which that

role is governed and publicly recognized.” Judith Rumgay,

Scripts for Safer Survival: Pathways out of Female Crime,

43 How. J. of Crim. Just. 405, 409 (2004). The offender

must entertain an expectation that he or she will be able to

fulfill the expectations of that role, and must be reassured

of the “recognition and validation by onlookers of the

personal identity expressed by those routines will support

its maintenance.” Jbid. Our activities, responses and

displays are moral performances and demonstrations of a

social character which profoundly influence our cognitive

activities as well.” Joseph P. Forgas, Epilogue, Everyday

Understanding and Social Cognition, in Social Cognition

Perspectives on Everyday Understanding 267 (Forgas, ed.

1981).

Moreover, just as exposure of any one member of a

household to unregulated police searches stigmatizes all

members of that household, so too unregulated police

searches in any community with high concentrations of

parolees inevitably means that that whole community may

feel stigmatized. This deprives individual parolees of the

reinforcement of positive civic virtue models they need for

desistance. Jeremy Travis, But They All Come Back:

Facing the Challenges of Prisoner Reentry 293-294 (2000).

II. Denial Of All Fourth Amendment Rights To Paro-

lees Undermines The Trust In The Fairness Of The

Criminal Justice System Modern Social Science Has

Demonstrated To Be Vital To Inducing A Normative

Willingness To Comply With The Law.

The established criminological research on the deterrent

power of criminal sanctions proves the incompleteness of

the deterrence-based approach. Empirical studies are equi-

vocal as to the success of criminal deterrence, especially be-

cause of the so-called threshold effect—ie., it is the

likelihood more than the potential severity of a sanction

that most deters potential offenders, and the likelihood

factor cannot become psychologically meaningful until it

reaches a fairly high threshold that is often infeasible for

the police to achieve. But another dramatic paradigm of

compliance with law has emerged. The major factor in

causing people to obey the law even when they have no

rational fear of sanction is their perception of the proce-

dural fairness of the law. Tom R. Tyler, Why People Obey

the Law (1990).

Rigorous and extensive experiments in social psycho-

logy, reported in the most eminent peer-reviewed journals,

establishes that the major determinant of a person’s self-

initiated willingness to comply with the law is not the fear of

sanction or even the likelihood of a self-interested outcome

of any legal proceeding, but the person’s subjective judg-

ment of the procedural fairness of the legal system. The

efficacy of the legal system cannot rest on the frequency

and severity of formal sanctions. Rather, it requires

cooperation and consent, because only they can facilitate

both immediate acceptance and long-term compliance. Tom

R. Tyler, Procedural Justice, Legitimacy, and the Effective

Rule of Law, 30 Crime and Justice: A Review of Research

283, 283-285 (M. Tonry ed. 2003). The dominant factor that

has been identified as promoting such cooperation and

consent is the perception that legal authorities are fair and

neutral. This is what social psychology calls “motive-based

trust” as opposed to “calculative trust.” Tom R. Tyler,

Trust and Law Abidingness: A Proactive Model of Social

Regulation, 81 Boston Univ. L. Rev. 361, 361-366 (2001).

This phenomenon has been confirmed with particular

clarity in the area of individual encounters with police.

Intensive survey-based empirical research focusing speci-

fically on California showed that the willingness of residents

of Oakland and Los Angeles to commit to compliance with

the police, even when not facing direct police coercion or

sanction, depended on residents’ perception that the police

had followed routines and processes that were not

arbitrary, were unbiased, and that respected their personal

dignity, regardless of the actual outcome of any police

encounter. Tyler, Procedural Justice, Legitimacy, and the

Effective Rule of Law, supra, at 330-340.

Respect for the law, especially in former offenders,

psychologically requires what has been called “authoriza-

tion”—the recognition of the legal system as legitimate and

the delegation of moral authority to it. Herbert C. Kelman

& V. Lee Hamilton, Crimes of Obedience Toward a Social

Psychology of Authority and Responsibility 16 (1989). In

turn, the former offender who acknowledges the legitimacy

of the legal system—“authorizling]” it—engages in the

feedback mechanism of “self-verification,” whereby he

commits himself to self-scrutiny of his actions in light of the

moral authority he has ascribed to the law. Peter J. Burke

& Jan E. Stets, Trust and Commitment through Self-Veri-

fication, 62 Soc. Psychol. Q. 347 (1999).

It takes little further argument to recognize the impli-

cations of this phenomenon for the question of Fourth

Amendment rights and parolees. Subjecting the parolee to

random, unregulated police searches, without regard to any

individual fault or individualized reasonable suspicion of

present criminal activity, cannot but undermine the

parolee’s view of the fairness of the police, as well as the

criminal justice system generally. A greater obstacle to the

restoration of the parolee’s self-motivated normative desire

to comply with the law can hardly be imagined.

CONCLUSION

The judgment of the California Court of Appeal should

be reversed.

Respectfully submitted.