What Are the Limitations on Parole Conditions?

As the reader of this article may already be aware, parole conditions are requirements with which a person on parole must comply. Violations of parole conditions can result in a range of sanctions up to a term of incarceration. Some parole conditions are required by state law. Other conditions can be imposed at the discretion of California Department of Corrections and Rehabilitation (CDCR) parole staff (for people with determinate sentences) and Board of Parole Hearings (BPH) parole staff (for people with indeterminate sentences). Penal Code § 3000(b)(7); Penal Code § 3053 et. seq.; 15 CCR § 2510.

General conditions are standardized provisions that the CDCR applies to all people on parole. General conditions include requirements that a person comply with parole agent instructions, not engage in criminal conduct, and not own, possess, use, or have access to any weapons. See 15 CCR § 2512.

Special conditions are imposed based on the particular facts of the person’s case. Examples of such conditions are requirements that a person submit to testing for controlled substances or participate in mental health treatment. See, e.g., 15 CCR § 3610 (parole outpatient mental health clinics); 15 CCR §§ 3620-3626 (urinalysis testing).

Another requirement is that people on parole who have been convicted of gang-related offenses, arson, some drug offenses, and most sex offenses are required to register with local law enforcement agencies upon release from prison. Registration is required by state statute and as a condition of parole. See Penal Code § 186.30; Penal Code § 290 et. seq.; Penal Code § 457.1; Health & Safety Code § 11590; 15 CCR §§ 3650-3654. Registration requirements vary depending on the type and date of the underlying offense, but generally include a requirement to register with local law enforcement authorities upon release and to re-register every time the person moves and/or annually. The CDCR regulations describe the registration requirements for various types of offenses. See 15 CCR § 3651 (gang related offenses); 15 CCR § 3652 (sex offenses); 15 CCR § 3653 (arson); 15 CCR § 3654 (drug offenses).

Please note that starting on January 1, 2021, sex offender registration requirements changed under Senate Bill No. 384 so that many people with sex-related offenses can petition to be relieved of their registration requirements after complying with registration for a minimum period of time. Penal Code § 290(d), eff. Jan. 1. 2021; Penal Code § 290.006, eff. Jan 1, 2021.

However, parole conditions must be reasonable in order to avoid violating a person’s constitutional protection against arbitrary and oppressive official action. In re Stevens (2004) 119 Cal. App. 4th 1228, 1234, 15 Cal. Rptr. 3d 168 (striking down prohibition on using computers and the internet that infringed on First Amendment rights and was broader than reasonably necessary to prevent future sex offenses).

A condition of parole is invalid if it (1) has no relationship to the crime of which the person was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. People v. Lent (1975) 15 Cal. 3d 481, 486, 124 Cal. Rptr. 905, 908; People v. Dominguez (1967) 256 Cal. App. 2d 623, 627, 64 Cal. Rptr. 290, 293. Although Lent and Dominguez involve probation conditions, courts apply the same legal analysis to parole conditions. In re Stevens, supra, at 1234.

Examples of conditions that have been struck down include People v. Nassetta (2016) 3 Cal. App. 5th 699, 207 Cal. Rptr. 3d 791 (striking down nighttime curfew as probation condition for drug and DUI offenses); People v. Soto (2016) 245 Cal. App. 4th 1219, 200 Cal. Rptr. 3d 247 (striking down probation condition that person obtain approval before changing residence or leaving state, where offense was DUI and driving with suspended license). For examples of conditions that have been upheld, see People v. Olguin (2008) 45 Cal. 4th 375, 87 Cal. Rptr. 3d 199 (upholding condition requiring person to notify probation officer of any pets in his residence, to ensure probation officer safety during home visits, on the theory that this was related to deterring future criminality).

Moreover, if a person has no history of alcohol abuse or of committing crimes while intoxicated, random alcohol testing cannot be imposed as a condition of parole, since such a condition does not relate to past or future criminality, and using alcohol is not in itself illegal. People v. Kidoo (1990) 225 Cal. App. 3d 922, 275 Cal. Rptr. 298, overruled on other grounds in People v. Welch (1993) 5 Cal. 4th 228, 19 Cal. Rptr. 2d 520]; compare with Penal Code § 3053.5 (requiring abstention from alcohol as condition of parole for persons who were intoxicated or addicted to alcohol at the time they committed a sex offense).

On the other hand, a condition requiring a person who was released on mandatory supervision to report to a gang unit was upheld based on their history of gang membership and gang-related crimes, even though their current crime was not gang-related; the condition was deemed to be reasonably related to preventing future criminality. People v. Martinez (2014) 226 Cal. App. 4th 759, 172 Cal. Rptr. 3d 320.

An additional limit is that a condition is unconstitutionally overbroad if it imposes limits on the person’s constitutional rights and it is not closely or narrowly tailored and reasonably related to a compelling state interest in public safety and rehabilitation. In re Babak S. (1993) 18 Cal. App. 4th 1077, 1084-1085, 22 Cal. Rptr. 2d 893, 897-898 (striking down probation condition requiring minor who was not a U.S. citizen, who was in the country legally with his parents, to be banished from the U.S.); In re Daniel R. (2006) 144 Cal. App. 4th 1, 50 Cal. Rptr. 3d 179 (striking down a probation condition placing an absolute ban on minor travelling to Mexico); People v. Burden (1988) 205 Cal. App. 3d 1277, 253 Cal. Rptr. 130 (person on parole who was convicted of writing checks with insufficient funds can be prohibited from maintaining a checking or charge account, but prohibiting working in commissioned sales is unnecessary infringement upon right to work).

Our office wishes to acknowledge and thank the Prison Law Office and their treatise, California Prison and Parole Law Handbook, for their excellent work. This article draws heavily from this treatise and without such excellent reference materials, this article would not be possible.