When, how and on what terms may parole or probation be revoked?

Revocation of probation or parole is a complicated process that involves two hearings and, in most cases, demands the help and guidance of an experienced criminal defense lawyer.

Revocation requires two hearings

A probationer or parolee is entitled to two hearings before a release may be revoked. At the first (preliminary) hearing, a probationer or parolee is entitled to notice of the alleged parole or probation violation, an opportunity to appear and to present evidence in his/her own behalf, a conditional right to confront adverse witnesses, an independent decision-maker, and a written report of the hearing. The government must show probable cause that a parole or probation violation was committed. The second hearing entails, or may entail, two decisions: first, a determination of whether the a parole or probation violation has, in fact, occurred; second, whether the individual should be recommitted to prison or other steps should be taken to protect society and improve his or her chances of rehabilitation. Only after it is first determined that the parolee or probationer did commit a probation violation will the second question be considered. The second hearing is more complete and offers the probationer/parolee more procedural safeguards. Specifically: (a) Written notice of the claimed violations of probation or parole; (b) Disclosure to the probationer or parolee of the evidence against him; (c) Opportunity to be heard in person and to present witnesses and documentary evidence; (d) The right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) A “neutral and detached” hearing body, such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) A written statement by the factfinders as to the evidence relied on and reasons for revoking probation or parole.

Evidence, discovery, burden of proof

The court and board may hear and rely on hearsay (an out of court statement that is offered to prove the truth of the matter asserted) as long as it bears some indication of reliability and there is good cause for foregoing live testimony. However, the criminal defendant has a right to cross-examine any witnesses who do appear. Some jurisdictions permit pre-hearing discovery (that is, a formal investigation process by the criminal defense attorney and the prosecutor), but usually it is more limited than that allowed before a criminal trial. The prosecution has the burden of proving a parole or probation violation by a preponderance of the evidence (that is, showing a violation is more likely than not). Since the criminal defendant already has been sentenced, there is no right to bail, but the court has the discretion to allow the defendant to remain free pending the final revocation hearing.

Timing of hearing

A revocation hearing must be held without unreasonable delay after arrest. This time limitation is not a strict one. For example, so long as a violation warrant or summons issues before the expiration of the term, the court may hold a hearing and revoke even after the term of probation, parole or supervised release ends. Some jurisdictions even permit the filing of a revocation warrant after the supervision period expires for conduct that occurred during the period. Delay becomes a factor for the court to consider in deciding whether to permit the revocation hearing to proceed.

Steps the criminal defense lawyer can take before and during the hearing

If you or a loved one is facing a revocation hearing, ask your defense attorney if he or she has taken the following simple steps to help avoid a re-sentencing:

• Talk to the probation or parole officer. The defense attorney should discuss with the supervising probation/parole officer the facts underlying the probation or parole violation and the defendant’s progress on supervision. While discovery rights are limited, the probation or parole officer might be willing to share valuable information. An experienced criminal defense lawyer will lobby the officer for a favorable recommendation. Probation and parole officers occupy a role midway between a police officer and a social worker. While they serve a crime-control function, they also have responsibility for assisting the offender in transitioning to law-abiding and productive behavior. Therefore, they might be willing to give the defendant a second (or third or fourth) chance.
• Research the law. The defense attorney must carefully check any re-sentencing statutes or guidelines to avoid pleading the defendant guilty to a probation or parole violation that carries mandatory incarceration (e.g., violations for possessing controlled substances or firearms).
• Suggest a postponement. If the defendant is not in custody, it makes sense for the defense attorney to suggest a postponement of the revocation hearing while the defendant enters a program or a return to supervision, perhaps with additional conditions of supervision. Several months of gainful employment and negative drug tests may convince the court to restore the defendant to probation or supervised release.
• Emphasize rehabilitative progress. Probation and parole violation hearings are difficult to win; they are more akin to a sentencing hearing than to a trial to determine guilt or innocence. Often, the best approach is to admit the parole or probation violation and try to build a case that the defendant was making rehabilitative progress (e.g., working, supporting his family, and attending drug treatment) and deserves another chance. The supervising probation or parole officer might be somewhat supportive, because he or she has invested time and effort into your client’s rehabilitation and would like to claim some success. Although some officers perceive themselves more as law enforcement officers than social workers, office directives often obligate them to make some effort to assist in the defendant’s rehabilitation by establishing a rehabilitative plan, referring the defendant to appropriate programs and monitoring and assisting the defendant’s progress. The experienced criminal defense lawyer will ask the probation officer about the plan he or she formed for the defendant; the steps that both the officer and the defendant took to fulfill that plan; and steps they might explore in the future to return the defendant to the rehabilitative track.

Re-sentencing for probation violations

Upon finding a probation violation, a court may reinstate the defendant to probation, extend the term of probation, or revoke probation and sentence the defendant to a term of imprisonment. The manner in which the court imposed probation becomes important. If the court suspended imposition of sentence or if probation was an independent sentence, the court can impose any other sentence that could have been imposed initially. Policy statements to the United States Sentencing Guidelines set the sentence upon a finding that the defendant violated federal supervised release or probation. The severity of the sentence depends on whether the violation is a new crime and whether the new crime is one of violence or drug distribution. Violations for possession of a controlled substance or possession of a firearm mandate imprisonment. Otherwise, the court can restore the defendant to supervision. The smart criminal defense lawyer will always be ready to suggest alternatives to the stark choices of restoring probation or incarcerating the defendant. These alternatives might include

• An extension of the term of supervision (especially if the violation is for failure to pay a fine or restitution)
• Closer supervision with more frequent reporting
• House arrest during non-working hours with electronic monitoring.

Re-sentencing for parole violations

Upon finding a parole violation, the board can commit the defendant to serve the balance of his original sentence, but no more. This is the one advantage of parole over probation. Many jurisdictions have guidelines that set presumptive sentences for particular violations. Even where the judge ran the original sentences on multiple counts concurrently, the judge can impose consecutive terms of imprisonment for supervised release violations. The general rule is that upon a “technical violation” (a violation for anything but a new conviction), the defendant is entitled to credit for “street time” (i.e., the time he spent at liberty on parole). However, upon a “substantive violation” (a new conviction), the defendant loses his street time and may be forced to serve the full balance of his sentence in custody. Jurisdictions vary widely on street time credit and revocation.

Violation sentences and sentences for underlying convictions

When the defendant faces both a sentence for a new conviction and resentencing for a parole or probation violation, the challenge for the criminal defense attorney is to avoid the sentences running consecutively. This will be difficult, however, because parole boards and re-sentencing judges generally add the violation sentence onto any new sentence. Since parole boards act nearly automatically in this regard, the best approach usually is to have the defendant start the violation sentence and then ask the judge on the new case to make the new sentence at least partly concurrent to the violation sentence. For this approach to work, the defendant must have started to serve the violation sentence at the time the new sentence is imposed.