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Thursday, Dec. 27, 2001

In United States v. Knights, one of its last opinions of 2001, the Supreme Court addressed the rights of probationers - convicted criminals whose sentence involves release into the community - to be free from searches that would surely be illegal if aimed at you or me. The opinion, in which the Court approved the search of a probationer's home on a far lower standard of suspicion than applies to the rest of us, points up the wisdom of remembering that probationary sentences are meant to be punishment, and not simply a get out of jail free card.

The Crimes of Mark Knights

Mark Knights had been convicted of a drug offense and sentenced to a term of probation. A condition of his sentence was his agreement to submit his "person, property, place of residence" - essentially everything he controlled - to search at any time. Knights acknowledged the condition by his signature.

Within a week of Knights' sentencing, a Pacific Gas and Electric transformer near Knights' home in Napa Valley, California was set on fire, causing over $1 million worth of damage. Knights had a long running feud with PG&E - they'd cut off his power for non-payment and filed a theft-of-service complaint against him - and local detectives noticed that other acts of vandalism at PG&E facilities nearby coincided with the various court dates in the company's proceedings against Knights.

Some gumshoe work around Knight's home and car revealed further grounds for suspicion, including what looked like Molotov cocktails and a brass lock that had been removed during the earlier arson at the PG&E facility. The local sheriff's office, aware of the terms of Knight's probation, decided to search his house without first getting a warrant. The search turned up a veritable arsenal, and the brass locks were indeed from the burned transformer. Knights was subsequently indicted on multiple charges stemming from the fire and his possession of explosives and ammunition.

Knights moved to suppress eveything the police found at his home, on the ground that the search was not intended to monitor his compliance with his probation, and therefore could not be justified by reference to the conditions of that probation.

The Fourth Amendment protects us against searches that are "unreasonable." Starting from that one vacuous word, the courts have fashioned a complex set of rules to guide the police in the protean circumstances calling for searches. When it comes to searching your home, those rules require two things: that the police have "probable cause" to believe they'll find evidence of a crime inside, and that the police get a judge to signal his agreement by signing a search warrant.

A unanimous Supreme Court held that these rules were properly suspended in Knights' case. Because he was a probationer, Chief Justice Rehnquist wrote, the police could search Knights' residence without a warrant and with nothing more than reasonable suspicion.

Probation as Punishment

Central to the Court's reasoning is a fact not completely understood: probation is punishment. A sentence of probation, as the Court noted in a 1987 case, is "one point...on a continuum of possible punishments." The principal means of punishment in any criminal justice system is depriving someone of his liberty, and the archetypical form of deprivation is a prison cell. But every criminal sentence involves a loss of liberty: an hour spent doing community service is an hour spent doing something that someone else (the judge) told you to do.

It is easy to think of jail as a place for those who deserve only punishment, and probation as an opportunity for those ripe for rehabilitation. Easy - but wrong. To begin with, prison itself always provides some measure of rehabilitation, whether in the form of addiction treatment, vocational courses, or just time to think. The majority of those sent to jail never, in fact, return. And, again, every sentence involves a loss of liberty and therefore a measure of punishment.

Viewed in this light, the restrictions on a probationer's life in the community are properly viewed as punitive - as concrete reminders that the probationer is not entitled to the same level of freedom as the rest of us. Probationers undoubtedly chafe at these restrictions, and they are meant to: punishment is not supposed to be pleasant.

The loss of Fourth Amendment rights is a particularly appropriate deprivation. A prisoner has absolutely no privacy rights in jail. His cell can be searched - "tossed," in prison lingo - anytime, for any reason. The restrictions placed on Knights plainly differ in degree. But for convicts, living in the community is a privilege, not a right.

Society's Interests - and the Probationer's

Separate from the punitive aspect of probation is the state's interest in keeping us safe from convicted criminals. Convicts are, unsurprisingly, more likely to commit crimes than the unconvicted. A probationary sentence represents a judgment, based on the nature of the crime and the criminal, that a controlled release into the community is more appropriate than incarceration. But it does not have to invest the probationer with all of his constitutional rights, and turn "catching" him into the same arduous process that it is for those not under the supervision of the state.

Convicts, whether on probation or not, lose a whole range of rights. There are limits on their right to vote, to own weapons, to hold certain jobs, and much besides. These limits stem from a combination of judgments about how to protect society and about whether a convict should continue to enjoy all the blessings of citizenship.

There are, of course, plenty of restrictions on a probationer even without the exposure to searches. And requiring that probationers enroll in drug treatment programs, go to school, or hold down jobs are all, in the long run, by far the most effective ways of ensuring that they don't return to crime. But these are decidedly long term measures. More immediately, there is not much the state can do to try to prevent probationers from committing individual crimes. You can check in with your probation officer from the same pay phone at which you are fielding drug orders.

Subjecting people to random searches is actually a potentially powerful tool for deterring crime. We do it all the time when it comes to drug use. Probationers are frequently required to submit to drug tests, with the timing entirely in the probation officer's discretion. Drug tests are, legally speaking, searches - the police can't walk up to ordinary citizens and demand that they submit urine samples. But for probationers, they can be conducted without any suspicion. These tests can both uncover evidence of crime, and alert probation officers to probationers who need extra attention.

Random searches of a convict's person, car, or home are different - but not very. The sanctity of the home is certainly part of a far longer constitutional tradition than the sanctity of the cocaine in your bloodstream. Still, a drug test is pretty invasive stuff. And again, the probationer's presence in the community is conditional. He could be in jail, and he should be if he violates the conditions of his release. A probationary regime ought to provide the greatest possible incentives for a convict to live a blameless life. Awarding him his full panoply of constitutional rights merely because he is doing his time with the rest of us rather than in prison serves, in the long run, neither society's interests nor his own.

Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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