Parole After Samson

Yesterday, in Samson v. California, the Supreme Court held that the Fourth Amendment does not prohibit police officers from conducting suspicionless searches of parolees. Justice Thomas argued that prisoners are subject to suspicionless searches. And because, in his view, parole is essentially a prison sentence that continues on the outside, the state retains the right to continue those searches during parole. Thomas made a clear distinction between those on probation (who have greater privacy rights) and those on parole. Stevens, writing for Breyer and Souter, argued that this decision constitutes an expansion of police power because it allows, for the first time, suspicionless searches in the absence of governmental “special needs.”

The dissent correctly views the decision as a doctrinal shift, but it is only one more step in a lonstanding move towards a “common sense” (i.e., defendant unfriendly) approach to criminal justice. Frankly, the Fourth Amendment horse left the barn when Humphrey’s campaign against Dick Nixon fell short.

The more interesting questions for me involve the long-term implications of Samson. The dissent states that only one or two states allow searches of the type experienced by Samson. I have to think that most states wil now join the bandwagon. DA’s will rarely lose a Fourth Amendment suppression motion submitted by a parolee. Other than states with a special interest in parolee privacy – and I have yet to meet that state – I would expect most jurisdictions to encourage officers to conduct these suspicionless searches. (Will an officer have to know she’s searching a parolee? Or will she get the free-pass search so long as she has probable cause to believe she’s about to search a parolee?)

Samson also creates new incentives for DA’s at sentencing. There is now a clear distinction between probation and parole: only parolees are subject to suspicionless searches. A savvy DA will ask for sentences that involve long paroles rather than long probations. (Thus, for example, a defendant who had served nine months awaiting trial might get an indeterminate sentence like “9 months to 5 years”, rather than simply “time served plus five years probation.” On the flip side, perhaps this enhanced supervision will make parole boards (or judges) a hair more comfortable placing inmates back on the street earlier in their sentence. (I’m not holding my breath.)

Then there is the question of electronic monitoring. One day, the government will be able to place subcutaneous monitoring chips into parolees. (Today we suffer with the oh-so-retro ankle bracelet.) Think of it as human LoJack. Does Samson suggest that the state can require installation of such chips without violating the Fourth Amendment? Imagine a world where any parolee can be located, and searched, anytime. That would not only give remarkable supervisory power, but would also enhance policing. Justice Thomas says that parolees have a 70% recidivism rate (though little of this reoffending seems to involve new felonies); think of all the other criminal conduct the state may derail once parolees are tracked down and searched. And what of the other folks riding in a car with the parolee? Once he’s been found, stopped, searched, and discovered to possess a gun or drugs, won’t the police claim reasonable suspicion to search all of his nearby buddies? This snowball process could take on troubling racial skew, since 64% of all state inmates are minorities. To the degree that minority offenders socialize predominately with other minorities – which wouldn’t be surprising, though I have no data on it – it will be minorities most at risk due to proximity to parolees.

The decision may seem relatively limited. But I suspect that, over time, Samson will turn out to be somewhat more important than it first appears.

UPDATE: Crime and Consequences, a new prosecution-oriented blog, believes that Samson clearly opens the door to GPS tracking of parolees.

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