On October 12, 2021, Massachusetts state trooper Bryce Molnar stopped a car for what he claimed was a minor traffic infraction. Within minutes, Molnar had removed both Black passengers from the car; placed one, Warrens Gelin, in handcuffs on the side of the road; and searched his backpack. Molnar never ordered the white driver out of the car, and never even issued a traffic citation. Upon reviewing the car stop, a trial judge determined that “Molnar’s detention of [the backseat passenger] in the cruiser and search of the backpack were not grounded in a reasonable belief that there was a weapon in the car, but rather a mere hunch that he might find some type of incriminating evidence.” Because the Fourth Amendment and its Massachusetts corollary preclude a “mere hunch” from justifying a police search, the court found Officer Molner’s actions “unreasonable and unconstitutional.” The evidence obtained as a result was suppressed, and criminal cases against both passengers were dismissed.
But this evidence, despite having been obtained in violation of the Constitution, was admissible as proof that Gelin had violated his probation—and, because of this, he was sentenced to a three-year prison term. If Gelin’s had not been on probation, this evidence would have been excluded because it was discovered unlawfully. In October 2024, after considering Gelin’s challenge to the admission of unconstitutionally obtained evidence at his probation revocation hearing, the Supreme Judicial Court of Massachusetts (SJC) reiterated that the exclusionary rule does not apply in probation revocation proceedings.
So doing, the SJC demonstrates its lack of understanding about the present-day realities of the community supervision apparatus. Efforts to end mass incarceration often promote all forms of community supervision as a “decarceral alternative”—but as Kate Weisburd has observed in Inquest, this has had the downstream effect of subjecting an ever-growing number of citizens to a truncation of their rights. It is no triumph of decarceration if the result is to entrench the absence of constitutional protections in increasingly widespread probation revocation hearings. Unfortunately, the SJC’s decision affirms as lawful the existence of a “constitution-free zone” around an enormous part of our carceral regime.
Ordinarily, criminal procedure’s “exclusionary rule” makes evidence that was unconstitutionally obtained by police inadmissible in criminal court. While flawed, this rule has been the system’s primary deterrent to unconstitutional police searches and seizures for over half a century. However, the Supreme Court held in 1998 that the federal exclusionary rule does not apply to parole revocation hearings. For its part, Massachusetts’s highest court had already said as much in a 1989 decision. Presented by Gelin with the opportunity to revisit that nonsensical ruling, the SJC instead chose to reaffirm that even evidence obtained by police in clear violation of federal or state law can be used in violation hearings.
The scope of this “exception” to the exclusionary rule is no small loophole. It is vast and racially disproportionate, and it will now continue to harm the lives of thousands—overwhelmingly people of color and poor people. This is in no small part because of the popularity of probation as a purported “alternative” to mass incarceration. Legal scholar Fiona Doherty summarized the problem well when she characterized probation as “a problem masquerading as a solution.” Indeed, more people are sentenced to probation than any other criminal legal punishment. Almost 4 million people—more than 1 percent of the U.S. population—are currently serving probation, or are on parole or supervised release.
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Because of discriminatory policing practices—racial profiling, over-policing of communities of color—those millions of people already under some kind of supervision are also often uniquely vulnerable to being stopped again by police. Black and Hispanic people are more likely to be on probation relative to their representation in the population, more likely to have longer terms of supervision, and more likely to face violations and to have their probation revoked. In addition to these racial disparities among who is serving probation, and how it is enforced, Black and Hispanic people are more likely to be stopped, searched, and arrested by police.
Denying people on probation the constitutional remedy of exclusion compounds the impact of racialized policing. It also heaps even greater risk upon a population of individuals who are already much easier to charge and punish. Unlike regular criminal cases, which must be proven beyond a reasonable doubt, prosecutors can prove both technical and criminal violations of probation by merely a preponderance of evidence, or sometimes an even less demanding standard.
Strangely, the ease with which such individuals can already be (re)incarcerated seemed lost on the SJC. In its ruling affirming the constitution-free zone of probation revocation hearings, it wrote that excluding unconstitutionally obtained evidence from probation revocation hearings “would provide at most only marginal additional deterrence against police misconduct” while making it harder for the government to force people to abide by the conditions of probation. Absurdly, while dealing this strike against constitutionally protected rights, the SJC painted the flattering portrait of itself as a great preserver of liberty, fearing that if it ruled otherwise judges would simply stop giving probation.
It is clear from this set of underlying positions, not to mention the ruling itself, that the SJC misunderstands a number of critical points about modern community supervision.
First, when the SJC originally decided in 1989 that the exclusionary rule would not apply to revocation proceedings, officers were unlikely to know a person’s probation status prior to or during a stop, search, or seizure. But now, police effortlessly obtain probation records, and modern law enforcement coordination means that police often know who is on probation in the communities that they patrol, and work with other agencies to track individuals who have been recently released to community supervision. Because of the reduced burden on proof, police and prosecutors know that it is easier to charge and punish individuals on probation. Despite this, the SJC declined advocates’ alternative request for the exclusionary rule to apply, at a minimum, at probation hearings where a police officer had reason to know that the individual they stopped or searched was on probation during the encounter. Contrary to the SJC’s assumption that police just happen upon individuals serving parole, the sheer prevalence of community supervision is compounded by the reality that police often know that the individual they are searching is on probation or parole. Advocates provided evidence suggesting that law enforcement regularly leverages its access to data on probation to investigate and enforce law violations unrelated to people’s conditions of probation.
Second, as Jacob Schuman argues in the context of federal supervision, removing constitutional protections from revocation hearings creates perverse incentives to leverage them to do the lion’s share of incarcerating: if a federal prosecutor is precluded by the Fourth Amendment from admitting illegally obtained evidence at trial, they can still introduce that evidence at a revocation proceeding. And increasingly, the revocation hearing has supplanted the criminal trial as a primary prosecutorial method. Notably, about half of all prison admissions in the United States are for violations of supervision, underscoring what a significant loophole is created by denying the exclusionary rule. The benefits for police and prosecutors of a probation violation hearing instead of a criminal trial are evident: there is a lower standard of proof, limited discovery obligations, relaxed rules of evidence, and, as the SJC just reaffirmed, no exclusionary rule. Moreover, the consequences of finding a violation of probation in state court can be equal to, if not more severe than, the term of imprisonment that would have been imposed for a new charge.
Third, by excising this procedural protection from probation hearings, the SJC has ignored the other important interests motivating the exclusionary rule: actualizing individual protection from police overreach, and preserving the integrity of our courts by refusing to introduce unlawfully obtained evidence.
Fourth, the SJC’s supposition that by entrenching this constitution-free zone it is protecting probation as a remedy is belied by reality. Several other states have held that the exclusionary rule always applies to probationary proceedings, and many states and courts of appeal recognize a safety valve of suppressing evidence stemming from egregious conduct or police targeting of probationers. There is no evidence that doing so damages the availability of probation. There is no support for the supposition that judges, deciding whether to give a jail sentence or a probationary one, would deny criminal defendants probation because they fear the application of constitutional protections to hearings where said supervision would be revoked. In fact, far from disrupting mass incarceration, scholars explain why probation is actually a “net-widener,” whereby judges impose probation in cases where they may not otherwise impose punishment at all.
Finally, as Justice Kimberly Budd explained in her concurrence, the SJC did not even engage with Gelin’s argument that evidence stemming from racial discrimination should be suppressed at parole revocation hearings. As an ACLU amicus brief informed the SJC, Black and Latino men are vastly overrepresented in Massachusetts’s incarcerated populations, are subsequently overrepresented in the probation population as a result of discrimination throughout the criminal legal system, and are disproportionately the victims of racial profiling in traffic enforcement. Justice Budd argued that excluding evidence obtained in a racially motivated stops would better align with the SJC’s repeated conclusion that judicial support is fundamental to realizing any modicum of equal protection under the law. Instead, by failing to acknowledge that racially motivated policing constitutes precisely the “egregious” constitutional violation that should trigger the exclusionary rule at probation hearings, the SJC backslid on this account.
I conclude by returning to Weisburd’s warning that justifying alternatives to incarceration because they are “not prison” dangerously immunizes these practices from legitimate critiques, and “further entrenches the racial, economic, disability, citizenship status and gender inequities that are often the initial inspiration for decarceration efforts.” In Commonwealth v. Gelin, the SJC had an opportunity to disincentivize the erosion of constitutional rights for the enormous amount of people serving community supervision, an erosion which is felt disparately by race- and class-subjugated communities. Instead, it affirmed and expanded the constitution-free zone permitted for individuals serving community supervision, making it easier to expand this intractable carceral footprint.
Image: Prashant/Unsplash
