Some Arkansas law enforcement officials are hailing a new state law that broadens their authority to search parolees and probationers.
But critics say the statute gives officials too much discretion and undercuts the privacy and dignity of people who are trying to rebuild their lives.
Act 895 gives police officers and sheriff's deputies the authority to search parolees and probationers and to inspect those former convicts' cars, homes and other property.
In the past, the nearly 52,000 probationers and parolees in Arkansas were subject to no-warrant searches by the 500 or so parole and probation officers working under the Department of Community Correction.
As of April 2, the 22,352 parolees and 29,524 probationers are now subject to searches by any sworn law enforcement officer.
A probationer driving to work and pulled over for a broken brake light, or a parolee stopped on a corner by an officer on foot patrol, now can be searched if the officer so desires.
Officers won't need "probable cause" to do it. The U.S. Constitution prohibits "unreasonable search and seizure," but federal courts have upheld these types of searches.
Dina Tyler, deputy director of the state Department of Community Correction, said the new law will help curb recidivism because it gives parolees thousands of more reasons to comply with the conditions of their paroles.
"If you are truly trying to build a different life, you're going to be fine. If you're not, then the community needs to know, and we need to know now," Tyler said. "You were only subject to about 500 officers, and now all of a sudden you're subject to 8,500 officers. ... It helps extend our vision. If they're going to try and step back into crime, we want to interrupt it before it escalates."
Arkansas State Sen. Joyce Elliott, D-Little Rock, said the new search authority undermines fundamental privacy rights.
Elliott serves on the Criminal Justice Oversight Task Force, created by Act 895 and responsible for improving the state's prisons and parole services.
People who support the measure assume that it will never affect them, she said.
"Most people think it's OK because they don't see themselves in that picture, they just see it as 'These are just criminals,'" Elliott said. "We oftentimes are very much OK with diminishing the rights of someone who is a 'criminal,' when there isn't a compelling reason to do so."
Supporters of the change argue that people out of prison on parole or probation would otherwise still be locked up, and that they waive certain constitutional protections to ensure that they are in compliance with the conditions of their release.
California has had such a law since the 1970s, according to Devallis Rutledge, a former police officer who now works as a special counsel for the Los Angeles County prosecutor.
The searches make sense, he said.
"Any number of our cases are traceable to police stopping someone for a traffic violation, seeing they're on parole ... they shake them down and they find a gun or the drugs. It's a great tool and has been greatly successful," Rutledge said. The law gives "them an incentive to stay clean and stay straight. ... I'm surprised that Arkansas, for Pete's sake, is 40 years behind California."
In 2009, lawmakers in North Carolina passed a law giving search powers to all sworn officers, but only if there was a "reasonable suspicion" that the probationer or parolee was engaged in criminal activity or was in possession of contraband.
Arkansas' Act 895 states that a search of a parolee shall "be conducted in a reasonable manner but does not need to be based on an articulable suspicion that the person is committing or has committed a criminal offense."
John Wesley Hall, a defense attorney who also sits on the task force, said he wishes lawmakers would have included a "reasonable suspicion" clause in the statue to curb the search authority being abused.
"They want to be able to control probationers or parolees more. I can see maybe distinguishing between probationers and parolees ... the gravity of [probationers'] crime is less," Hall said. "But there still ought to be a reasonable suspicion there, or they're just a moving target. The cop [shouldn't be able to] say 'I know him, he's on parole, pull him over.' The guy is literally a moving target and that offends my sense of justice."
Kenton Buckner, Little Rock's chief of police and a member of the task force, said he is holding off on his officers doing such searches until the department has an established policy on them that is based on the best practices of similar departments.
If used correctly, Buckner said, the new authority will be a great tool for officers, an "extra tool on your belt" in being able to stop burglars and other offenders.
But, he said, he wants his officers to be able to explain why they are conducting such a search.
"You would want [officers] to have some kind of information they'd be able to articulate in court, why they took a stop a step further," Buckner said. "I don't want to get to the point of harassing anyone."
Elliott and others have voiced concern that some officers will abuse the new power to harass people who are trying to get fresh starts.
But A.J. Gary, chief of police in Conway and the head of the state's association of police chiefs, said he is drafting a policy that calls for searches to be done in a "reasonable manner." It will also make clear that searches should "not be used for purposes of harassment."
The policy calls for documenting any search done on a parolee or probationer, he said.
Gary said most agencies are waiting for an ideal policy to be formulated and implemented before encouraging officers to start searches of probationers or parolees.
In Conway, Gary said, officers' may have a policy within the next week.
Other jurisdictions have already begun the searches.
Hall said he has gotten calls from parolees and probationers who have been searched. Preventing harassment will be difficult, regardless of what a policy says.
"Word is out that the statute passed and they're acting on it," Hall said. "It's going to happen in a small town all the time. If they want to harass someone, they can."
Hall is also concerned that the new law, which seeks to change the behavior of noncompliant parolees and probationers in order to reduce recidivism, will have the opposite effect, at least in the short term.
"More people are going to be arrested through more searches," he said. "What they're looking for is a more grievous crime than they stumble on a bit of pot, and the parolee will get revoked for that."
Tyler said an officer stumbling upon a parole or probation violation won't automatically result in the offender being sent back to prison. There are a range of sanctions that parole and probation officers can impose.
"I don't think law enforcement will run willy-nilly through the state, snatching up all the parolees and probationers, and shaking them down. I don't see that happening. They don't have the time," Tyler said. "I can understand that concern [of harassment]. ... If they are following the laws of the land and the laws of society, which they have returned to be a part of, then there is no fear."
Metro on 07/13/2015