People sentenced to probation or paroled in Pennsylvania may be thankful that they either avoided a jail or prison sentence altogether, or had their jail or prison sentence reduced because probation or parole was either part of their sentence or a factor in their case.  Probation and parole may seem straightforward at first glance, but there are important distinctions between the two variations.  As importantly, when a person is facing a probation or parole violation hearing, understanding these distinctions is especially critical to achieving success at a probation violation (VOP) hearing or a parole revocation hearing.

What is probation?  What is parole?

Parole and probation are variations on the imprisonment of convicted criminals and are primarily concerned with the rehabilitation and restoration to a useful life of the parolee or the probationer.  The 1973 United States Supreme Court of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), established these principles.  The name "Gagnon" may be familiar to some defendants facing violation hearing because violation hearings are named after the individual involved in this case.

Is probation a sentence?  Is parole not a sentence?

Probation is a sentence to a period of supervision, and the Pennsylvania Sentencing Code makes it clear that a term of probation is a "sentence" - 42 Pa.C.S.A. §§ 9721(a)(1), 9722.  Parole is not a sentence, but rather, is the release from prison before the completion of a sentence, conditioned on the individual's abiding by  certain rules for the remainder of the sentence.  The Pennsylvania Parole Act is codified under 61 P.S. § 331:1 et seq.

Prior to the institution of parole in Pennsylvania penological framework, commutation was employed as a means of reducing the length of a sentence. Commutation thus resulted in the discharge of a prisoner without further supervision by Pennsylvania State authorities. Since the introduction of parole in Pennsylvania at the turn of 20th century, the practice of releasing prisoners on parole before the end of their sentences has become integral to the Commonwealth of Pennsylvania's system of punishment. Rather than being an arbitrary exercise of clemency, parole  offers prisoners a means to reintegrate into society as soon as they can, with the commitment advantage of reducing the cost to a society of confining the individual for the full term of his or her sentence.

What is the law regarding parole in Pennsylvania?

Parole in Pennsylvania is permitted by the Parole Act of 1941; codified as 61 P.S. § 331:1 et seq. Because Pennsylvania parolees are still subject to an extant term of imprisonment and are the focus of society's rehabilitative efforts, parolees are treated differently from the general population.

Some Considerations Regarding How Pennsylvania Parolees and Probationers Are Treated Differently Than the Average Citizen:

Although the offender's freedom of may be substantially restricted, a Pennsylvania judge granting county parole is vested with broad powers to fashion appropriate conditions of parole when they are intended to effectuate rehabilitation and reintegration into society as a law abiding citizen.  The case of Commonwealth v. Hermanson, 449 Pa.Super 443, 674, A.2d 281 (1996) established the foregoing principle.

Because state parole is a favor that lies solely within the Pennsylvania Parole Board's discretion, and because a prisoner lacks a liberty interest in being paroled, it has been consistently held that a prisoner has no right to appeal a decision of the Board denying a request for parole.

The law governing probation and parole does not implicate decisions by Pennsylvania Corrections Officials.  Therefore, in the Pennsylvania Commonwealth Court case of Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766 (Pa.Cmwlth 1997), an appeal did not lie from a prisoner's challenge to a corrections officials' operation of a treatment program that allegedly infringed upon restitution rights.

If a prisoner challenges a parole board's denial of parole because he or she failed to undergo a "12-Step" rehabilitation program offered by the corrections facility that was permeated with references to God, and thus in violation of one's First Amendment rights, the prisoner would not be challenging the Board's conclusion that the prisoner was not rehabilitated and should not be granted parole. Instead, the prisoner's challenge, if successful, would force the prison officials to offer other rehabilitation program without constitutional infirmities. An appeal of the Board's decision would be useless because the Board has no power to order the prison officials to implement a new program or to change the existing program. Nor does the prisoner have a claim to parole because he or she admittedly has not taken steps to lessen the danger that he or she poses to society.  The foregoing considerations were also addressed in the case of Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766 (Pa.Cmwlth 1997).

What is the Pennsylvania Parole Board's primary goal?

Under the 1996 amendments to the Pennsylvania Board of Probation and Parole Law (the Parole Act), the Board's primary goal is to protect the safety of the public. In addition, the Board is required to address input by crime victims and assist in the "fair administration of justice by ensuring the custody, control and treatment of paroled offenders"  - 61 P.S. § 331:1 .

Can my probation officer do A, B, or C?  Can my parole agent do X, Y, or Z?

Probation and parole officers, in supervising probationers and parolees, have a wider latitude in their right to question their charges than do other law enforcement officers, and therefore do not have to administer warnings concerning the rights to counsel and to remain silent before questioning persons on probation or parole.

A parole officer is permitted to search the belongings of a parolee to ensure that he or she does not conceal evidence of a violation of parole.

Because the Fourth Amendment prohibits the warrantless search of probationers' or parolees' residences without the consent of the owner without a statutory or regulatory framework governing the search, the Pennsylvania legislature as enacted regulations governing searches by parole and probation officer.  This principle was established by the case of Commonwealth v. Edwards, 535 Pa. 241, 634, A.2d 1093 (1993)

Although the Fourth Amendment exclusionary rule does not apply to parole revocation hearings in Pennsylvania, the Pennsylvania Supreme Court has yet to determine the applicability of the exclusionary rule to parole revocation proceedings under Pa. Const. Art. 1, § 8.

Can my defense attorney represent a probationer or parolee at a VOP or revocation proceeding?

Implicit in the rights and requirements is the right to effective assistance of counsel at revocation proceedings.  The rights afforded a person during parole and probation revocation proceedings are identical.  In addition, ineffectiveness claims concerning revocation hearings are cognizable under the Pennsylvania's Post-Conviction Relief Act (PCRA).

If I am on parole in another state, can I live in Pennsylvania?

The Pennsylvania Board of Probation and Parole is authorized to supervise persons paroled by other states and now residing in Pennsylvania when the other states agreed to perform similar services for Board.

Pennsylvania Attorney for Probation and Parole Issues | Lawyer for Pennsylvania Probation and Parole Cases

There are many similarities and also many differences regarding probation and parole in Pennsylvania.  When a person is sentenced to probation or is paroled, if there no issues and the person successfully completes his or her period or probation or parole, such a variation on imprisonment is obviously a favorable resolution.  Understanding one's rights and responsibilities while on probation or parole is critical to avoiding issues, however, because the stakes are high when a probationer or parolee faces a violation of probation (VOP) hearing or a parole revocation hearing.

If you or a loved one have questions or concerns about probation or parole throughout Pennsylvania, including, but not limited to, Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, and Northampton County, contact the skilled attorneys on our Criminal Law Team today.