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Bench Book - 4.7.1 General Considerations

Offenders, including those subject to supervision under the ICAOS, have limited rights. Conditional release is a privilege not guaranteed by the Constitution; it is an act of grace, a matter of pure discretion on the part of sentencing or corrections authorities. See Escoe v. Zerbst, 295 U.S. 490 (1935); Burns v. United States, 287 U.S. 216 (1932); United States ex rel. Harris v. Ragen, 177 F.2d 303 (7th Cir. 1949); Wray v. State, 472 So. 2d 1119 (Ala. 1985); People v. Reyes, 968 P.2d 445 (Calif. 1998); People v. Ickler, 877 P.2d 863 (Colo. 1994); Carradine v. United States, 420 A.2d 1385 (D.C. 1980); Haiflich v. State, 285 So. 2d 57 (Fla. Ct. App. 1973); State v. Edelblute, 424 P.2d 739 (Idaho 1967); People v. Johns, 795 N.E.2d 433 (Ill. Ct. App. 2003); Johnson v. State, 659 N.E.2d 194 (Ind. Ct. App. 1995); State v. Billings, 39 P.3d 682 (Kan. Ct. App. 2002); State v. Malone, 403 So. 2d 1234 (La. 1981); Wink v. State, 563 A.2d 414 (Md. 1989); People v. Moon, 337 N.W.2d 293 (Mich. Ct. App.1983); Smith v. State, 580 So.2d 1221 (Miss. 1991); State v. Brantley, 353 S.W.2d 793 (Mo. 1962); State v. Mendoza, 579 P.2d 1255 (N.M. 1978). Some courts have held that revoking probation or parole merely returns the offender to the same status enjoyed before being granted probation, parole or conditional pardon. See Woodward v. Murdock, 24 N.E. 1047 (Ind. 1890); Commonwealth ex rel. Meredith v. Hall, 126 S.W.2d 1056 (Ky. 1939); Guy v. Utecht, 12 NW2d 753 (Minn. 1943).

Offenders enjoy some modicum of due process, particularly with regards to revocation, which impacts the retaking process. In addition to the rules of the Commission, several U.S. Supreme Court cases uphold the process for returning offenders for violating the condition of their supervision. See e.g., Morrissey v. Brewer, 408 U.S. 471 (1972) (parolee entitled to revocation hearing); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probationer entitled to revocation hearing); Carchman v. Nash, 473 U.S. 716 (1985) (probation-violation charge results in a probationrevocation hearing to determine if the conditions of probation should be modified or the probationer should be resentenced; probationer entitled to less than the full panoply of due process rights accorded at a criminal trial). The U.S. Supreme Court has recognized that offenders subject to probation or parole have some liberty interests, but that they need not be afforded the “full panoply of rights” enjoyed by defendants in a pretrial status, because the presumption of innocence has evaporated. Due process requirements apply equally to parole and probation revocation. See Gagnon, supra.

References

Definitions

Click terms below to reveal definitions used in this rule.

Probable Cause Hearing – a hearing in compliance with the decisions of the U.S. Supreme Court, conducted on behalf of an offender accused of violating the terms or conditions of the offender‘s parole or probation.

Retaking – means the act of a sending state in physically removing an offender, or causing to have an offender removed, from a receiving state.

Supervision – means the oversight exercised by authorities of a sending or receiving state over an offender for a period of time determined by a court or releasing authority, during which time the offender is required to report to or be monitored by supervising authorities, and to comply with regulations and conditions, other than monetary conditions, imposed on the offender at the time of the offender’s release to the community or during the period of supervision in the community.