Chapter 7Probation Modification and

Termination

Introduction Probation is conditional and may result in:

Early termination- if the probationer is compliant Modification- most typically, if technical or

misdemeanor violations occur Revocation- if serious technical violations or new

crimes occur

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Modifying Probation Conditions Early Termination of Probation

Some states allow early termination after successful completion of 1/3 of the probation term or 2 years, whichever is less.

Modifying Conditions Before the Revocation Decision Some jurisdictions allow probation officers to modify

conditions in response to specific violations through the use of

Administrative Options.

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Administrative Options Administrative interventions are in-house approaches

that take place by a probation officer, sometimes in conjunction with a supervisor’s advice or approval, prior to filing a formal revocation with the courts.

Administrative interventions may include oral/written reprimands, staffings, motivational interviewing techniques, or a directive.

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Administrative Options, Con’t. Some agencies have the probationer sign a waiver

that he or she is agreeing to modified sanctions in lieu of going to court, and thus is waiving the right to a court hearing.

Most officers preferred to use in-house intervention techniques with probationers who made little to no effort to find employment, who failed to report, did not appear for community service work, and for the first positive alco-sensor test. LO: 2

The Decision to Revoke Issues involved in probation revocation include:

Revocation authority Types of probation violations Revocation procedures Rights during revocation

While most revocation decisions are discretionary, some jurisdictions mandate automatic revocation .

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Types of Probation Violations Law Violation- occurs if a probationer commits

another misdemeanor or felony crime. Technical Violation-a pattern of infractions,

usually technical, that breach a condition(s) of probation. 85%-90% of all violations are technical

Probation Absconders-occurs if a probationer leaves the jurisdiction without permission.

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Revocation Procedure Revocation procedures are governed by:

Constitutional rules State/Federal law Agency policy

The federal system and some states provide probation officers the power to arrest probationers, while other states specifically prohibit probation officers from doing so.

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Revocation Procedure, Con’t. Time on probation or parole is usually not

credited toward sentence completion if a revocation occurs.

However, a federal court and now a Florida statute permit the court the option to credit none, some, or all time spent on supervised release toward the sentence.

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Revocation Rights of Probationers and Parolees

A probation or parole revocation is an “administrative hearing” and is seen as an extension of the existing sentence, and: Does not require a jury No Fifth Amendment privilege No speedy trial

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Revocation Rights of Probationers and Parolees, Con’t.

Gagnon v. Scarpelli (1973) The Supreme Court mandated due process for probation

revocation proceedings, consisting of: A 2 stage hearing, consisting of a preliminary hearing and a final

revocation hearing Written notice of the alleged violation Disclosure of the evidence The opportunity to testify and present evidence The right to confront and cross-examine witnesses The right to judgment by a neutral and detached hearing body A written statement of the final decision, including evidence relied

on in arriving at the decision LO: 4

Revocation Rights of Probationers and Parolees, Con’t.

The Supreme Court had granted the same due process rights to parolees one year earlier in Morrissey v. Brewer (1972).

The level of proof and evidence required for revocation varies among the states, although most require preponderance of the evidence as the standard.

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Revocation Rights of Probationers and Parolees, Con’t.

Revocation for inability to pay fees, restitution or fines can occur if the behavior is willful and intentional.

Juvenile probation revocation is bounded by the age of the juvenile at the time of sentencing, rather than at time of revocation.

Probation may be revoked after the probation period has expired under certain conditions.

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Due Process Rights in Revocation Hearings

1. Written notice of the alleged probation violation2. Disclosure of the evidence of violation3. The opportunity to be heard in person and to present evidence

and witnesses4. The right to confront and cross-examine adverse witnesses5. The right to judgment by a detached and neutral hearing body6. A written statement of the reasons for revoking probation, including evidence used in arriving at that decision

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Probation Effectiveness Probation Recidivism Rates

The definition of “success” and “failure” differs between researchers.

35 studies in the U.S. found rearrest rates from 12%-65%, the conviction rate from 16%-35% and the revocation rate from 14%-60%.

Two large studies reported successful probation completion rates of over 70%.

Probation is most successful for those eligible for diversion, misdemeanor or first-time felons. LO: 5

Probation Outcomes, Con’t. Those most like to succeed on probation are:

Women Offenders over the age of 30 Those with no prior or adult or juvenile convictions Those with skills to maintain employment High school graduates Those that lived with their spouse or children

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Probation Outcomes, Con’t. Upon comparison, probationers committed less

technical violations and fewer new crimes than parolees.

Probationers were more likely to complete supervision successfully than parolees, regardless of crime committed.

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