Patterico's Pontifications


Supreme Court Decision on Parolee Searches

Filed under: Crime,General — Patterico @ 9:36 am

A word about today’s Supreme Court decision on parolee searches.

In California, prisoners released on parole are informed that they are subject to search by a parole officer or peace officer, at any time of the day or night, with or without a warrant. The theory is that parolees are still serving their sentence, but the law allows them to serve the last three years of that sentence out of custody — as long as they agree to certain conditions, including the search condition. California courts have upheld such searches as long as they are not arbitrary, capricious, or harassing. Today the Supreme Court has upheld this line of authority.

The policy behind this is as follows:

The California Legislature has concluded that, given the number of inmates the State paroles and its high recidivism rate, a requirement that searches be based on individualized suspicion would undermine the State’’s ability to effectively supervise parolees and protect the public from criminal acts by reoffenders. This conclusion makes eminent sense. Imposing a reasonable suspicion requirement, as urged by petitioner, would give parolees greater opportunity to anticipate searches and conceal criminality.

In California, where I practice, this does nothing to change the law. Under California precedent, the police must know that the parolee is on parole before conducting a parole search, and the Supreme Court notes this precedent in a footnote and does not take issue with it. So police can’t just roust a random citizen, and have the search be saved because it turns out (unbeknownst to the officer) that the citizen was on parole.

All the decision means is that, for the period of three years after being released from prison, the police can search you to make sure that you are following the laws. If you don’t like it, the law allows you to serve your parole period in custody as an alternative.

The bottom line: during their three-year parole period, parolees aren’t like other citizens. They are considered to be in the custody of the Department of Corrections, and are treated as such. Big deal.

I assume this decision will have the civil libertarians screaming, but it strikes me as perfectly sensible. Kudos to Justice Thomas, who wrote the opinion, and to the Chief Justice and Justices Scalia, Kennedy, Ginsburg, and Alito, who joined it.

9 Responses to “Supreme Court Decision on Parolee Searches”

  1. That anyone could take issue with an inmate of the California Department of Corrections agreeing to searches as a condition of his release from the Big House is the underlying gut-buster of the appeal.

    I’ve routinely seen defendants listen to the judge ask, “Do you accept probation on these terms and conditions?” They sometimes say, “My Honor, I object — ” before their attorney shuts them up and explains that the alternative to agreeing to the judge’s terms are a quick walk into the custody box, followed by transportation to jail or prison.

    Once they’ve agreed to it, how do we arrive at a conclusion that it’s unconstitutional for these defendants to agree to be bound by the terms of an agreement that gets them out of custody?

    More time wasted resolving a legal issue that has zip-point-zilch-minus-three percent merit on its face.

    Mike Lief (e9d57e)

  2. If they would only expand this reasoning to probationers as well … the distinction is insignificant and the benefit is great for law abiding persons everywhere.

    MOG (59bfb8)

  3. I think there’s enough in the opinion to provide ammunition for those who would extend the decision to probationers. But there’s also ammunition for those who wish to distinguish probation from parole.

    Oh well, it’s an issue for another day.

    Patterico (50c3cd)

  4. Someone must have mugged Justice Ginsberg; I note that she agreed! Did the three justices who did not sign on to Justice Thomas opinion dissent?

    I assume from your article that if a prisoner served his entire sentence, he would not be covered under this decision.

    Dana (3e4784)

  5. If he served his three-year parole period in physical custody, he would not be covered. But he would still be subject to administrative searches without suspicion, so he wouldn’t be any better off.

    Patterico (50c3cd)

  6. What are the prospects of another Bush appointment to the Supremes before 2008?

    CStudent (59bfb8)

  7. What, pray tell, was the dissenter’s point?

    Kevin Murphy (805c5b)


    Patterico (50c3cd)


    Reasonable suspecion, hum. Let’s apply that to airports. Or courthouses, where there is less option about entering.

    Kevin Murphy (805c5b)

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