Gang members are frequently subjected to either parole or probation conditions as a result of their criminal activities. Those tasked with maintaining compliance must be versed in probation and parole issues. A gang member s status as a probationer or parolee can be an effective investigative tool for a gang investigator when properly utilized in accordance with the law. Officers must be familiar with both standard and special conditions of probation that are often ordered for gang members upon their release or in lieu of going to jail.
An effective and necessary tool in reducing gang violence is a coordinated probation and parole violation system. Probation and parole violations can efficiently hinder a gang s ability to control an area and send a message to individual gang members who mistakenly view their probationary or parolee status as a sign that they have "gotten away" with criminal conduct. This assumption or miscalculation by gang members typically makes them vulnerable to a well-coordinated and well-focused effort to systematically take these individuals off the street and place them in the custodial environment, which many truly deserve. Remember: The gang member's status as a probationer or parolee subjects him/her to state prison for any violation of the law or violation of any condition as imposed.
When a gang member is placed on probation or granted parole, it s seen by many police officers as an act of leniency, in which the state takes a substantial risk that the probationer or parolee may commit additional antisocial acts. Where probation and parole fail as a rehabilitative device which is often evidenced by the subject s failure to abide by the conditions as set prior to their release the county or state has a significant interest in being able to imprison the probationer or parolee without the burden of a new criminal trial. Typically, a revocation hearing will determine the probationer or parolees fate.
Probation vs. Parole?
As in many states, all California prisoners must serve a period of parole upon release from prison (unless parole time is served in custody). This time is often recognized as a time of transition from prison life to the real world. Parole can last from one year to life, depending on the offense. The parolee remains in the legal custody of the state department of corrections even though they live in the community.
Probation is the county equivalent. Many times probation can be served upon release from county jail, or it may be a sentence that is given in lieu of going to jail.
Why Does It Fail?
Unfortunately, many gang members come out of custody on probation or parole in worse shape than when they went in. They are often angrier and more antisocial, having been beaten, robbed, raped and psychologically damaged by the jail or prison experience. And often, they did not acquire any new skills or education that would be useful to them on the outside. So they start associating with the same people they were with when they got in trouble, which lands them right back into the gang or drug scene they are mandated to avoid. Substance abuse is a major factor in parole/probationer failure. Many parolees have a history of chronic drug use, and too frequently this leads to relapse, violation of probation and parole revocation.
Compounding the problem, decreasing budgets have made caseloads almost unmanageable for most probation and parole agents. The caseloads of today vary significantly from those of years ago, shifting from a majority of property crimes to a majority of violent crimes. In fact, many mandated services and drug testing are not being done, making conditions of probation or parole almost meaningless.
The problem can be addressed by both sides of law enforcement. Police officers can assist by conducting checks of compliance when we encounter these suspects on patrol. Custody officials can mandate probation and parole conditions that preclude continuing gang and drug involvement and provide enhanced tracking to suppress gang crimes committed by probationers and parolees.
How We Do It
The San Diego County Jurisdictions Unified for Drug Gang Enforcement unit, or JUDGE, is a good example of an anti-gang and anti-drug unit that exemplifies a cooperative approach to combating gangs. JUDGE is a multi-agency task force that includes law enforcement, state parole, county probation and the district attorney s office in a cooperative effort to target hardcore gang members involved in drug trafficking.
The team s mission is to check on gang members that have been convicted and placed on probation, or on parolees released from prison, to ensure they aren t committing crime and that they are in compliance with the conditions of their probation or parole. The key here is coordination and cooperation among various agencies groups.
Know the Conditions
Courts may impose and require reasonable conditions of probationers and parolees. The court may determine that for justice to be served and proper amends to society be made for the violation of law or for injury done to any person resulting from that violation. It might also serve the reformation of the probationer or parolee. Standardized gang-control conditions of probation and parole typically preclude continuing gang and drug involvement and provide enhanced probationer/parolee tracking, which is necessary to suppress gang crime.
Equally important, non-association conditions of probation and parole can, and should, be mandated for all parolee and probationer gangsters free in the community. These conditions may serve to fragment the probationer from his/her fellow gang members. The conditions also may aid the probationer who wishes to avoid further gang contact by creating an "acceptable" explanation to his/her fellow gang members as to why he/she is no longer hanging out with them. Either one of these results serves the public by seeking to dissuade probationers and parolees from the associations they held when they came into contact with the criminal justice system the very associations that continue to keep them coming back into the system.
Knowing the standard conditions of probation and parole, and having access to this information, is important for officers who determine whether a violation has occurred. Additionally, in the case of gang members, many times special conditions of parole (such as gang affiliation, alcohol, association, off-limit areas, prohibiting specific articles of clothing, etc.) can apply. Investigators know that understanding the conditions placed on these gang members is valuable. Maintaining a good working relationship with the local probation and parole officers is the answer.
The courts have determined that a probationer or parolee who has been granted the privilege of probation or parole can be subject to a search condition, meaning that he/she submits at any time to a warrantless search and has no reasonable expectation of Fourth Amendment protection. The reasoning behind the search condition stems from an analogy of a consent search. In cases in which a suspect gave consent to search and contraband was found the resulting search does not violate the Fourth Amendment, so long as the search does not exceed the scope of the consent and the consent was free and voluntary. A probationer or parolee s waiver of his/her Fourth Amendment rights is no less voluntary than the waiver of rights by a defendant who pleads guilty to gain the benefits of a plea bargain, for example. If they don t want to give this consent, the probationer or parolee can choose to remain in custody and serve their sentence.
This advanced search consent as a condition of his/her probation or parole makes it legal for a police officer to enter a residence, vehicle or search the person pursuant to such the search condition. There are certain requirements, however, of which all officers must be aware. A probationer consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a county jail or state prison term. Probation is a privilege. If the defendant considers the conditions of probation harsher than the sentence the court would otherwise impose, he/she has the right to refuse probation and undergo the sentence. Unlike a probation search, which does not typically require suspicion as a prerequisite, a parole search often requires the officer have knowledge or information amounting to reasonable suspicion that the parolee is engaged in criminal conduct or other violation of his or her parole in many jurisdictions. Used correctly, however, this advanced consent is an effective tool to suppress gang activity by probationers and parolees.
Another useful tool for dealing with gang members on probation or parole is to make certain areas off limits to them as a condition of their release. To do this, gang investigators make direct contact with the probation or parole officer and request that the subject be restricted from areas of significant gang activity. The probation officer will then describe the area in the official conditions on file with the court and the probation or parole department. This is common for gang members served with gang injunctions for example, making it a violation of a court order and a violation of the gang member s probation or parole should they return to the area.
In California, San Bernardino County utilizes satellite tracking anklets (typically used for high-risk sex offenders) on paroled gang members. The program targets parolees who meet specific criteria, such as being a prison gang member or part of a gang injunction. With the anklets, officials can view a parolee s location 24 hours a day and be alerted if the wearer tampers with the device or enters an exclusion zone, such as a victim s neighborhood. Law enforcement can also check whether parolees have attended mandatory drug counseling or obeyed requirements of their house arrest.
Communication between Officers, Probation & Parole
When ex-cons are approaching the end of their parole terms, the California corrections department must file a discharge report. Those reports can recommend that a violent parolee remain under supervision. Among them is an emphasis on drug, alcohol and other treatment programs that includes providing access even after convicts are released from parole. One area where we fail is informing local police agencies of the gangsters release, where they will be living and what they are prohibited from doing. Armed with this information, police officers can be more vigilant to the presence of the parolee or probationer and help maintain compliance of that individual.
Potential Cooperating Individuals
There are many things to consider before deciding to work with a specific informant. One factor is: Do they have a tail? A tail means that you may not have full control over the informant. There may be other agencies that have an interest in controlling the individual, and you may need to get their permission to work with the person as an informant before you can put them to work.
If your potential informant is on probation for example, his/her probation status will have to be addressed. If your informant will have to engage in activities that may lead to a violation of their probation conditions, such as a non-association clause with gang members, you may need to inform the probation officer. That officer s consent should be sought and documented. Depending on the probation conditions, the court may need to be notified as well.
Similarly, the consent of a potential informant s local parole officer must be sought. If the specific parole officer objects to your use of his parolee, there is an appeal process through the state parole board or you may want to deal with the department of corrections and rehabilitation investigations unit (or equivalent) to sign them up and work them in a more controlled and confidential setting. There have been many cases where a parolee wanted to help himself/herself out by working with local police agencies, but was prohibited from doing so by their parole officer. Factors may include a record for violence, substance abuse issues or control issues.
The rules of evidence are relaxed in a parole or probation violation hearing because the role of the court is no longer to determine whether the probationer or parolee is guilty or innocent of a crime but whether he can be safely allowed to remain in society.
California Penal Code Section 1203.2(a) provides the basis for probation violations. At any time during the probationary period of a person released on probation, if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation, the officer may, without warrant or other process and at any time until the final disposition of the case, re-arrest the person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her re-arrest. Upon such re-arrest or upon the issuance of a warrant for such re-arrest the court may revoke and terminate such probation.
Another benefit is once the court makes the initial determination that a probationer is in violation of probation, the defendant is not entitled to bail. A holding of the existence of probable cause, however, would warrant returning him to his place of detention pending further proceedings.
Parole and probation can be effective means of transitioning a gang member from jail or prison back into society. But it only works as long as we use the tools available to us from limiting movement to searching property to regularly checking on status. State budgets are making our jobs more difficult. But if we work together, in many cases we can prevent a person on parole or probation from slipping back into the life that landed them in custody in the first place. If that s not possible, then we must at least be aware of their presence and status in the community so that we can put them back in custody as soon as they begin to slide.
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