For the Defense - Volume 1, Issue 3 - 2016 - 27

of discretion in a Board finding that recommitment was necessary. It reached that conclusion based upon facts showing the parolee was an undue risk to public safety.4 The Commonwealth Court in Harmer stated that "[i]t is noteworthy" that the current version of Section 6138 (inapplicable to that case) contains different mandatory language."5 Effective January 2, 2013, 61 Pa.C.S. §6138 (c)(i)-(v) provides as follows: (c) Technical Violations Detention and recommitment under this paragraph shall be in a community corrections center . . . unless the board determines that one of the following conditions is present: (i) The violation was sexual in nature. (ii) The violation involved assaultive behavior. (iii) The violation involved possession or control of a weapon. (iv) The parolee has absconded, and the parolee cannot be safely diverted to a community corrections center or community corrections facility. (v) There exists an identifiable threat to public safety, and the parolee cannot be safely diverted to a community corrections center or community corrections facility.6 The Board does not have broad discretion to recommit technical parole violators under this statute. The Legislature chose to treat technical violators very differently than those convicted of a new offense. Those convicted of a new offense "may at the discretion of the Board be recommitted as a parole violator."7 The Legislature utilized the word "shall" for the disposition of technical violations, thereby creating a mandatory duty that may not be disregarded.8 Section 6138(c) plainly sets forth a presumptive release provision, with the burden on the Board to show that it comes within one of the stated statutory exceptions. 9 There is more support for the claim that the Board should only be permitted to incarcerate a technical violator under very limited circumstances. Sub-section (c)(v) requires that "[t]here exists an identifiable threat to public safety." In addition, the Legislature uses examples before it mentions the threat to public safety in sub-section (v). The sequence is significant because "[g]eneral words shall be construed to take their meanings and be restricted by preceding particular words."10 Finally, given the mandatory presumptive release language of this statute, it is worth raising a due process claim as well.11 Applying the Suppression Remedy to Revocation Proceedings Almost twenty years ago, the Pennsylvania Supreme Court unanimously held that the Fourth Amendment suppression remedy applied to revocation proceedings.12 The United States Supreme Court reversed. The majority, in a 5-4 decision, dubiously held that probation and parole officers are not in need of the deterrence provided by the exclusionary rule's application.13 In Pennsylvania, decisional law and statutes prohibit the search of any adult or juvenile probationer or parolee's person or home without reasonable suspicion.14 Thus, there is a viable claim that suppression is warranted in Pennsylvania when such a statute is violated. Given these statutory provisions, an argument can, and should, be made regarding the suppression remedy under Article I, Section 8 of the Pennsylvania Constitution.15 Guidance on this issue may come soon. In April of 2016, our state Supreme Court heard oral argument on whether to extend the suppression remedy to revocation proceedings based upon the statutes and Article 1, Section 8.16 Revocation Based on a Discharge from a Program Many probationers and parolees are revoked based on a discharge from a mandated program where successful completion was a condition of their release. Revocation based solely on a discharge should be insufficient for revocation. The claim finds support from the Due Process Clause as well as state law. Like an arrest, a discharge from a program is something that happens to an individual, rightly or wrongly, and is not proof of specific misconduct.17 The Board can only sustain revocation based on a discharge if it is shown by substantial evidence Vol. 1, Issue 3 | For The Defense 27

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016