Probation in the Modern World

In the early hours of Sunday, October 27, 2013, police officers arrested singer Chris Brown and his bodyguard in Washington, D.C.  Early reports allege that Brown and his bodyguard attacked a man outside the W Hotel by the White House.  While a police investigation will determine whether or not Brown is guilty of the crimes he committed, he faces the very serious issue of having violated his probation.  At the time of the arrest, Brown was on probation following his February 2009 arrest for assaulting his then-girlfriend, Rhianna.

According to the Bureau of Justice Statistics, 4,814,200 Americans were under community supervision (probation or parole) at the end of 2011.  Four million people amongst that group were on probation.  The Prince William County Court defines probation as a court ordered sanction that allows a person to remain in the community under the supervision of a court officer.  Probation can include jail time, fines, restitution, community service or other sanctions.  Probation is not exclusive to felonies.  In fact, it is very common for people charged with felonies to plead out to lower level misdemeanors and enter probation as their punishment.  Probation is an extremely popular option in the United States court system because it allows low-level offenders to stay under court supervision without taking up room in the already overcrowded court system.

While probation will always remain a popular option in the United States, it has its critics.  Many believe that probation (which is often used in plea deals) is too soft a punishment.  Critics believe it is, in essence, letting criminals off the hook.  Supporters of probation have also argued that the current system is ineffective and administered poorly.  One law review article even goes as far as to refer to probation as “the stepchild of the criminal law and corrections systems.”[1] Regardless of where you stand on probation, there are currently very few options that provide continuing surveillance of offenders without simply incarcerating them.  Probation provides officials a means to monitor offenders – usually low-level offenders- without taking up space in prison cells.  Theoretical and procedural inefficiencies aside, probation does provide an important service for which the criminal justice system currently lacks alternatives.

When someone enters their probationary period, they are usually required to meet with their probation officer on a weekly basis.  The person is not allowed to associate with any known gang members or criminal delinquents.  Most importantly, especially for Chris Brown, any arrest constitutes a violation of probation and possibly a revocation of the plea deal.  Needless to say, probation is a lot of work and responsibility.

For juveniles, probation can be an extremely risky venture.  Unlike the adult system, juvenile court does not have juries and punishments are made solely by judgments.  Similar to the adult system, plea deals dominate the court system and probation remains a very popular option.  One of the issues of putting a juvenile on probation is that it keeps the state involved in their life for an extended period of time.  As a result, issues in the juvenile’s life that are normally reserved for adjudication by a school or parent quickly get converted into opportunities for state intervention.  For example, little Billy Smith gets charged with felony robbery and misdemeanor theft.  Billy pleads out to the misdemeanor charge to drop the felony, and ends up getting a year of probation.  Five months into the probationary period, Billy gets into a fight at school and gets suspended for three days.  Now, in the non-probation world, Billy gets scolded by his Mom, loses X-Box for a week, and life goes on.  But Billy now has to report the suspension to his probation officer.  This goes into the probation officer’s report and could potentially lead to a number of consequences for Billy, including an extension of the probation time.

Clearly the current probation system has its faults.  Just thinking about the sheer number of people on probation speaks to how overwhelmed the system is.  The whole principle behind probation is supervision.  Anything that requires supervision of four million people nationwide is going to cause a headache.  Even if probation is too soft a punishment or incredibly inefficient, the alternatives can be less appealing.  Abolishing the probation system is simply not an option.  There has to be an alternative to incarceration that does not simply release convicts onto the streets.  The prison system cannot handle that sort of surge.  But what are the other options?  Restorative justice movements have gained momentum in small communities, but one would figure that critics who find probation “too soft” would probably not support victim restoration programs.  Plus, could you really implement restorative justice on that large a scale? Further, the sluggish economy does not provide state governments too much room to experiment with different programs.  Like it or not, probation is here to stay.

Chris Brown represents both the shortfalls and successes of probation in the United States.  On the one hand, the evidence of his crime was gruesome and overwhelming.  Pictures arose of a badly beaten woman with little question of who was throwing the punches.  Five years probation does not exactly scream “justice”.  On the other end of the spectrum, the probation process has served its purpose with Brown.  He remains on the radar of the criminal justice system.  If the arrest does constitute a violation of his parole, then his punishment will not be reflective of felony assault, but of a history of legal issues within a short period of time.  Can United States’ citizens really ask for much more from their criminal justice system?

As practitioners, the real key to solving the inefficiencies of the probation system are two-fold- (1) advising clients to accept responsible plea deals and (2) good post-conviction counseling.  The first concept almost fulfills the second.  Accepting a responsible plea deal with a reasonable probation time will aid a client in staying within the restrictions of their probation.  In other words, the more suitable the probation- the less likely the client is to violate it.  That being said, post-conviction counseling is important.  Recidivism is not some elusive concept.  Offenders can have a bad tendency of reoffending.  Aiding a client in finding steady work, avoiding bad influences, and meeting regularly with their probation officer can go a long way in keeping your client out of prison, and your office from getting slammed with unnecessary work.

Calen Weiss

Articles Editor, Criminal Law Practitioner

Image from deviantART.

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[1]The Committee to Study Alternatives to Incarceration and Probation, “Report on Alternatives to Incarceration and Probation”, 49 Rec. Ass’n B. City N.Y. 377, 379 (1994). 

Navarette v. California: Will the U.S. Supreme Court Rule in Favor of an Anonymous Tip Exception for Reckless and Drunk Driving?

On October 1, 2013, the United States Supreme Court granted certiorari in Navarette v. California, the case questions whether an anonymous tip about a motorist’s reckless driving is enough reasonable suspicion for a police officer to pull over that motorist, without the officer first corroborating the tip with his own investigation.[1]  This case is timely considering the present division among state and federal courts on this issue.

Four years ago, the Court declined to hear an appeal from Virginia officials over the same issue, after the Virginia State Supreme Court sided with a defendant who was arrested after police received an anonymous tip that he was driving while intoxicated.[2] Chief Justice John Roberts dissented, stating that the “stakes are high” and explained why the Court should have agreed to hear the case.  Specifically, Roberts stated that the Virginia decision grants “drunk drivers ‘one free swerve’ before they can legally be pulled over by police” and explained the potential unfortunate consequences of an officer being powerless to pull someone over, “even for a quick check.”[3]  Now, Roberts will have his chance to review the issue with his fellow justices, deciding the important issue of whether anonymous tips can be constitutionally sufficient justification for an officer to pull over a motorist who is alleged to be driving recklessly.

The present case, Navarette v. California,[4] involves two brothers who pled guilty to transporting marijuana after California Highway Patrol officers pulled over their silver Ford 150 pickup based on an anonymous call reporting the motorist’s alleged reckless driving.  In this case, the anonymous caller stated that the vehicle had run the caller off the road, and identified the vehicle by its model, color, and license plate number.  The officers did not personally observe any erratic driving prior to stopping the vehicle.  Once the brothers were pulled over, however, the officers searched the truck, finding four large bags of marijuana, and arrested driver Lorenzo Prado Navarette and passenger Jose Prado Navarette.  The Navarette brothers pled guilty and are now appealing their convictions.  The brothers are arguing that the traffic stop violated their constitutional rights, based on prior precedents establishing that anonymous tips by themselves ordinarily are not sufficient for police to detain or search someone.

It is well established that anonymous tips alone are not sufficient for creating the reasonable suspicion necessary for conducting a stop.[5]  Rather, the officer must corroborate the information provided in the anonymous tip by performing an independent police investigation.  Additionally, it is also well established that an officer may not pull over a motorist without an objective basis for doing so.[6]  Notably, even when stops are pretextual, the officer must first witness the motorist commit a traffic violation, however minor, before being legally justified in pulling over the motorist.[7]

The policy behind the corroboration requirement for anonymous tips is clear: we do not want to permit police officers to conduct stops, seizures, or searches on innocent people, as their constitutional liberties are at stake.  Therefore, when police officers want to make a stop based on an anonymous informant’s tip, they must have corroboration in order to ensure that verification of the tip’s reliability has been performed.[8]  Courts have often noted that independent police corroboration is particularly crucial when dealing with anonymous informants because, unlike with known informants, the veracity and knowledge of the anonymous informant is unknown.[9]  Additionally, courts have previously held that merely identifying a person that matches an informant’s physical description and location of a person will not suffice for corroboration.[10]  Further, simply because the informant’s tip turned out to be correct does not suggest that the officers, prior to their stop, had a reasonable basis for suspecting a person to be engaging in unlawful conduct.[11]

Accordingly, the crucial question for the Justices to decide in the Navarette case is whether anonymous tips about reckless or drunk driving should be treated differently than other anonymous tips.  While the argument in favor of preventing accidents due to drunk or reckless driving is strong, the importance of upholding the constitutional guarantees against unreasonable searches and seizures would seemingly outweigh the contention for allowing the exception. When innocent persons’ liberties are at stake, the Supreme Court should find that preserving this right is more crucial than preventing the rare instances in which an anonymous tip is accurate.  Above all, holding the police to their investigative duties, rather than allowing them to perform arbitrary stops based on anonymous tips, is a crucial duty that the Court must maintain. Otherwise, innocent persons may be stopped simply because the personal agenda or vendetta of an anonymous person “says so.”

        

Monika Mastellone

Senior Staffer, Criminal Law Practitioner 

Image by John L Marino, via Wikimedia Commons.

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[1]186 L. Ed. 2d 963, 2013 U.S. LEXIS 5125, 82 U.S.L.W. 3177, 2013 WL 5430499 (U.S. 2013).

[2] Virginia v. Harris, 558 U.S. 978, 130 S. Ct. 10, 175 L. Ed. 2d 322, 2009 U.S. LEXIS 7645, 78 U.S.L.W. 3236 (U.S. 2009).

[3] Id. (Chief Justice Roberts, dissenting).

[4] 186 L. Ed. 2d 963, 2013 U.S. LEXIS 5125, 82 U.S.L.W. 3177, 2013 WL 5430499 (U.S. 2013).

[5] Alabama v. White, 496 U.S. 325 (1990).

[6] See Whren v. United States, 517 U.S. 806 (1996); Duckett v. United States, 886 A.2d 548, 551 (D.C. 2005).

[7] Whren, 517 U.S. at 806.

[8] Alabama v. White, 496 U.S. 325 (1990).

[9] Id.

[10] See Florida v. J.L., 529 U.S. 266, 272 (2000) (holding that police officers who identified a person based on the informant’s description of location and apparel worn by the suspect, was not sufficient corroboration).

[11]  See id. 

Buccal Swab "Booking Procedures": Lower Courts Struggle to Apply Maryland v. King

On June 3, 2013, the Supreme Court handed down a widely-anticipated opinion in Maryland v. King.  In this case, the defendant’s DNA was collected by the state after an arrest for first-degree assault.  Though he pled to a lesser misdemeanor charge, King’s DNA was found to be a match for an unsolved 2003 rape for which he was eventually convicted.  The Court addressed the following issue: “whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges.”  Justice Kennedy, writing for the Court, did not examine the issue in isolation, but considered it in light of Maryland’s DNA Collection Act, which contained various protections for the accused.  Specifically, DNA could only be collected if the individual was charged with a violent crime, could not be recorded or stored until after the individual was arraigned, and samples would be destroyed if the criminal action did not result in a conviction; further, the DNA could not be used for any purpose other than identification.

The Court found that the DNA collection (via buccal swab) was a search for Fourth Amendment purposes, and employed a reasonableness test, balancing the intrusion on the individual against the legitimate interests of the state.  The intrusion, the Court held, was minimal; on the contrary, the state’s interest (that is, “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody”) was compelling.  Justice Kennedy viewed this kind of DNA collection as part of identification and booking procedures such as fingerprinting or a “station-house search of the arrestee’s person and possessions.”  He also noted that “the Act provides statutory protections that guard against further invasion of privacy.”  Thus, by a five-four margin, the Court upheld Maryland’s DNA Collection Act along with similar statutes in twenty-eight states.

This opinion ignited controversy, and left lower courts (particularly those in states without DNA collection statutes) with little guidance regarding how to treat the collection of DNA from arrestees.

Some of the strongest objections have been from Fourth Amendment privacy advocates (such as Justice Scalia), who note that “your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."  The Ninth Circuit recently considered the case of an individual found guilty of a drug conspiracy charge, who sought to have his DNA and blood sample returned to him (and deleted from CODIS, the federal database) after his period of supervised release was complete.  The majority did not reach his Fourth Amendment claim, but the dissent noted that Kinghad drastically expanded the pool of individuals subject to DNA testing by the state— an estimated fifty-two percent of men are arrested at some point in their lifetime.[1]  These advocates argue that the individual’s privacy interest should have been weighted more heavily by the Court.

Other advocates argue that the State’s interest should be weighted less heavily, and question the identification rationale.  Because of the permanent nature of individuals’ DNA profiles, a law enforcement agency can obtain the same degree of identification following an arrestee’s conviction as could be obtained before the conviction.[2]  Further, officers are usually required to identify arrestees before sending DNA samples to be tested, so the King majority’s identification rationale is redundant.[3]

Regardless of scholarly dispute on Maryland v. King, lower courts have struggled to apply the Court’s reasoning in two situations.  First, courts in jurisdictions without a DNA collection statute must determine whether such searches may proceed without statutory authorization, and whether they (the courts) have the authority to put protective limits on usage or storage absent statutory law on the topic.  Secondly, courts are faced with cases where DNA was not taken at the time of arrest (the “booking procedures” outlined in King) but where prosecutors seek a court-ordered buccal swab for evidentiary purposes sometime before trial and before conviction.

In United States v. Calhoun, a federal district court summarized the issue:

The Supreme Court recently held that taking and analyzing a cheek swab of an arrestee’s DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment . . . but [here,] the government requests that the Court require DNA testing at a time when the interests identified in King – “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody” – no longer apply. . . [T]o assert that the collection of DNA would be done at this point as part of legitimate police booking procedure would be a pretext; the defendant was arrested approximately eight (8) months ago.[4] 

To resolve this tension, the Court required the government to show probable cause that “evidence of a crime will be found in a particular place”, namely, the defendant’s DNA, and found that the government had not satisfied that burden.[5]

The District Court for the Western District of New York addressed the same question and reached a different conclusion.  InUnited States v. Navarro-Gonzales, as in Calhoun, the government sought a court-ordered buccal swab well after the defendant had been arrested, intending to gather evidence for trial.  The Court purported to apply a probable cause test, and found that the government had satisfied its burden, but noted that King may have “alleviate[d] the need for a showing of probable cause.”[6]

In conclusion, the Supreme Court’s landmark decision in Maryland v. King created scholarly controversy, but also left lower courts struggling to apply its “booking procedure” rationale in cases where the buccal swab is not sought until long after arrest.  Additionally, courts in jurisdictions without statutorily-authorized DNA collection must decide whether they can authorize buccal swabs at all, and if they can, whether they have the authority to limit the usage of collected DNA absent statutory protections.  Until the issue reaches appeal, trial courts will be left to interpret Maryland v. King in a patchwork manner, leaving the rights of the accused up to the discretion of whichever judge they appear before.

Ryan Watson

Senior Staffer, Criminal Law Practitioner 

Image by Mass Communication Specialist 2nd Class Michael Starkey, via Wikimedia Commons.

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[1] United States v. Kreisel, 720 F.3d 1137, 1161-62 (9th Cir. 2013) (Reinhardt, J., dissenting).

[2]Kelly Ferrell, Twenty-First Century Surveillance: DNA “Data-Mining” and the Erosion of the Fourth Amendment, 51 Hous. L. Rev. 229, 241 (Fall 2013) (referring to State v. King, 42 A.3d 549, 579 (Md. 2012), rev’d, Maryland v. King, 133 S.Ct. 1958 (2013)).

[3] Id. (citing Md. Code Regs. 29.05.1.4(K)-(L) (2012)).

[4] United States v. Calhoun, 2013 WL 3833206 (D. Ariz. July 24, 2013) (not yet reported).

[5] Id., at *1.

[6] United States v. Navarro-Gonzales, 2013 WL 3759956, *3 (W.D.N.Y. July 15, 2013) (slip op.).

Inaccurate Background Checks: An Expunction of Job Opportunities?

For criminal defenders an acquittal usually means a job well done.  However, some acquitted defendants can still suffer from their interactions with the criminal justice system, due to the increasing reliance of potentially inaccurate FBI background checks.  These individuals can see their future job opportunities limited because an arrest can remain on their criminal record without an explanation.  An incomplete or incorrect background check can drastically impair a person’s ability to find or hold a job, especially when FBI background checks often fail to report the final outcome of an arrest.  Therefore, those who have been arrested, but have not been charged with a crime, suffer merely for their brief interaction with the criminal justice system.  For these reasons, when faced with a client who is acquitted or arrested and not charged, criminal defense attorneys must aggressively move to expunge arrest records to prevent a future detriment to a client from an inaccurate background check.

In the absence of an authorizing statute, courts are ambivalent as to whether they have the authority to grant an expunction, even when a defendant is found innocent.  In United States v. Cosme-Rivera, a defendant’s motion to expunge was denied, even when found not guilty of illegally reproducing copyrighted materials.[1]  The court held it did not have the jurisdiction to grant this type of motion.  Additionally, in Carter v. United States, the third circuit denied a petitioner’s motion to expunge his arrest record, even when he was never indicted.[2]  The court reasoned that Congress had not granted the court judiciary authority to expunge executive records, and the petitioner had not been involved in a judicial proceeding to justify the court’s jurisdiction to expunge his records.  Conversely, other courts have recognized the value of expunging a defendant’s record, especially when that defendant has been acquitted of the charges brought against him.  In United States v. Benlizar, a court granted a defendant’s motion to expunge his arrest record, holding that, despite the absence of statutory authority, expunction was available where the government’s need to retain the records was outweighed by the harm to the individual. [3]  The court noted that courts and legislators had become increasingly sensitive to the harm that criminal records may cause to individuals when there is no conviction.  Courts have also recognized that arrest records have the potential to impact an individual’s opportunity for schooling or employment.[4] These concerns are particularly prevalent in those circumstances where an individual is arrested without probable cause.[5]

Critics of the over use of expunction motions describe these motions as attempts to rewrite history, making it more difficult to ensure the protection of the public.  Critics argue that criminal records are very important because the licensing of professionals depends on background checks and these records are instrumental for law enforcement offices to identify potential perpetrators of criminal offenses.[6]  An expunged state criminal record proved to be an issue when a firearm and ammunition dealer sought a review of the revocation of its licenses for having a “convicted” criminal as one of its employees.  In Dickerson v. New Banner Institute, an employee plead guilty for carrying a concealed handgun in Iowa, but his record was expunged after his probation term had ended.[7]  The Court held that federal authorities are not bound by state expunction orders in a prosecution under federal gun control laws that require a prior conviction.[8]  Dickersononly concerned a federal gun control law and a post-Dickerson Congressional amendment to that law provided that a conviction that has been expunged in the jurisdiction where the proceeding is taking place is not considered a conviction.[9]  However, absent a federal statute saying the contrary, Dickerson may, in fact, be the controlling precedent regarding expunged convictions in state courts.[10]  With language like “in the absence of a plain indication to the contrary…it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law” it is not unreasonable to see how Dickerson applies to the relationship of other federal statutes and the expunction of state records.[11]

Whether Dickerson’s assessment of the relationship between federal statutes and state expunctions applies to FBI arrest records has yet to be determined.  Efforts in Congress to remedy the inaccuracies of FBI background checks have already been proposed, but, absent comprehensive federal legislation, these inaccuracies will remain.  It will be up to the courts to determine whether they have the power to expunge unduly harmful arrest records, particularly for acquitted defendants or those individuals never charged with a crime.  Practitioners, therefore, need to be aware of the expunction rules within their individual jurisdictions.  In addition, to ensure that clients are not harmed from future employment opportunities, practitioners need to aggressively pursue an expunction of a client’s record even in a jurisdiction that has no authorizing statute.  These efforts are especially relevant when working with clients who have been acquitted or have never been charged.  The argument that an innocent individual’s employment options are undeservedly affected unless his records are expunged can be extremely compelling in the current economic environment; the lack of authorizing statutes or ambivalent precedents should not stop practitioners from tending to their client’s needs.

Luis U. Asprino

Staffer, Criminal Law Practitioner

Image by Tracy Collins , via Wikimedia Commons.

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[1] United States v. Cosme-Rivera, 556 F. Supp. 2d 66 (D.P.R. 2008) (holding that the defendant did not seek expunction under any federal statute, denying the court the authority to expunge the criminal record).

[2] Carter v. United States, 431 Fed.Appx. 104, 105 (3d Cir. 2011) (denying a motion to expunge an arrest record finding that the court did not have inherent jurisdiction to expunge non-judicial records).

[3] United States v. Benlizar, 459 F. Supp. 614, 619 (D.D.C. 1978) (noting the harm caused by a record that is not expunged can cause unjust harm to a defendant as a person who becomes entwined with the justice system may not be able to disconnect himself even when completely free from charges).

[4] See Kowall v. United States, 53 F.R.D. 211, 214-15 (D. Mich. 1971) (observing how arrest records can substantially affect an individual’s reputation which can impair that individual’s ability to pursue school, employment, ability to obtain a professional license even if that individual has been cleared of all charges).

[5] See Menard v. Saxbe, 498 F.2d 1017, 1025 (D.C. Cir. 1974) (finding that the absence of probable cause for a defendant’s arrest is a sufficient constitutional reason to expunge an arrest record for that defendant).

[6] See James W. Diehm, Federal Expungement: A Concept in Need of A Definition, 66 St. John's L. Rev. 73, 76-77 (1992) (discussing the various potential policy concerns regarding the general use of expunctions of criminal records).

[7] See Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983) (reviewing a case where a firearms manufacturer was found guilty of violating Title IV of the Gun Control Act of 1968 which makes it unlawful for a person who has been convicted of a crime punishable by imprisonment for more than one year to ship, transport, or receive any firearm ammunition in interstate commerce).

[8] See id. at 114-22.

[9] See United States v. Pennon, 816 F.2d 527, 529 (10^thCir. 1987) (citing 10 U.S.C.A. § 921 (West), finding that Congress’ decision to adopt expressly the states’ definitions of what constitutes a conviction effectively overrules Dickerson). 

[10] See Diehm, supra note 6 at 100-1 (discussing the implications of the Dickerson ruling after Congress amended the federal gun control laws to reflect that expunction does not count as a prior conviction).  See also United States v. Petros, 747 F.Supp. 368, 375 (E.D. Mich. 1990) (implying that because Congress did not amend a narcotics statute in that cause then its intent was for Dickerson to apply to narcotics cases).

[11] See Dickerson, 460 U.S. at 119 (analyzing the purpose of the federal gun control statute and its relationship to an expunction of state conviction).