The Utah Supreme Court heard arguments recently on whether the state Board of Pardons and Parole has the constitutional right to issue warrants to arrest parole violators.
The board was ruled to have been arresting violators improperly in a 3rd District hearing in June 2002. The high court quickly issued an emergency stay on Judge Denise Lindberg's ruling, pending its decision.
Sharel S. Reber, an assistant in the Utah Attorney General's Office, argued that the lower court's ruling was wrong and that the board is within its constitutional rights to issue the warrants.
Attorney Edward K. Brass, however, said the warrants give the board, which is part of the state's executive branch, powers reserved for the judiciary.
The issue is before the Supreme Court on the state's appeal of the ruling, which addressed issues raised by Brass' defense of Scott Allen Jones, who was arrested on such a warrant after a robbery and parole violation to which he later pleaded guilty.
"Before we begin taking these people into custody willy-nilly without probable cause, they do have some due process rights," Brass told the justices Monday.
But Reber said a parolee remains under the control of the board until his or her parole is up.
"A retaking (of a parole violator) simply does not impact the core judicial function," Reber said. "A parole violator is still very much in the custody of the Department of Corrections."
She said a distinction must be drawn between a suspect accused of a crime and a parolee who already has been convicted of a crime.
She described a hierarchy of warrant procedures in which a convict in prison can be disciplined without a warrant, a citizen whose sentence has been completed cannot be taken without a warrant, and a parolee falls somewhere in the middle.
But Brass said such an argument falls flat.
"This whole notion that somehow the walls of prison have been expanded . . . is a notion that has been abandoned long ago," he said, pointing to a 1930s court ruling.
He said the state has the right to take a parole violator into custody but that it must be done consistently to the state's constitution — a judge should issue the warrant, based on probable cause.
The court will issue an opinion on the issue in the coming months.
If the high court upholds the 3rd District ruling, many inmates would have cause to challenge their arrests. In 2001 alone, the board issued more than 1,600 warrants. Brass told the court Monday the board issues five or six such warrants each day.
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