Feb 1, 2013

The Ins and Outs of Parole Revocation

According to a report from the PEW Center on the States, 43.4 percent of individuals released from prison are reincarcerated within three years. Contrary to popular belief, the majority of folks returning to prison are not returning for the commission of new offenses, but for violating parole conditions governing their release.

Parole and probation agencies play a critical role in the calculation of recidivism results. Between 2006 and 2009, 30.5 percent of individuals in New York State were returned to prison due to a parole violation as opposed to the 10.7 percent returned to prison because they were convicted of a new felony offense.

Last week, the Hon. Thomas Geller, presiding judge of the Harlem Parole Reentry Court, trained Center staff on the ins and outs of parole revocation. Here is a snapshot of what we learned!

What Happens If A Violation Occurs?
When an individual violates a condition of his or her release, such as not making curfew or failing to report to parole officer, a parole violation warrant may be issued. Once the warrant is issued the individual is taken into custody at a local facility and may not be released on bail. Within three days of the warrant being filed, the parolee is served with both a Notice of Violation and a Violation of Release Report detailing the parolee’s rights and the charges against him. Within fifteen days of the warrant’s filing a Preliminary hearing must be scheduled unless the individual waives such hearing.

What is a Preliminary Hearing?
A preliminary hearing is a brief, informal inquiry into the alleged violations. The purpose of the hearing is to determine whether or not probable cause exists to believe that the individual has violated one or more conditions of their release in an important respect. It is important to note that there is no absolute right to counsel, meaning the parolee may be represented by counsel at the preliminary hearing but the state is under no obligation to provide or appoint an attorney at this stage. At the preliminary hearing the parolee is entitled to:
(1) Speak on his own behalf or obtain legal counsel;

(2) Introduce letters and documents in support of his case;

(3) Present witnesses to provide relevant information in his favor; and

(4) To confront and cross-examine witnesses testifying against him

If, at the preliminary hearing it is determined that no probable cause exists to believe that the individual has violated a condition of release, the warrant will be cancelled and the parolee will be restored to parole supervision. If probable cause is found at the preliminary hearing or if the parolee waives the preliminary hearing, a member of the Parole Board will review the case and decide whether the parolee will be declared delinquent or restored to supervision. Where the parolee is declared delinquent there is an arraignment during which the parolee may be offered a plea. If the parolee pleads guilty his parole will be revoked and he can be returned to prison or he may be restored to supervision and sentenced to a community program. Alternatively, if declared delinquent parolee will have a final hearing no more than 90 days after the probable cause determination.

What Is A Final Revocation Hearing?
To revoke an individual’s parole, the Division of Parole must show at the final hearing that it is more likely than not that the parolee violated at least one of the conditions of release in an important respect. The final hearing is more like a standard trial where the Division of Parole will present witnesses and evidence to prove charges and an attorney representing the parolee will introduce evidence and witnesses to counter the charges. The parolee’s rights at the final hearing are essentially the same as those at the preliminary hearing with two additional benefits. Unlike the preliminary hearing, here the parolee has an absolute right to counsel and has the right to present mitigating evidence in support of restoring parole supervision.

How Do The Parole Revocation Guidelines Work?

Where it has been determined at the final hearing that an individual has violated one or more conditions of release, parole guidelines mandate a certain sanction or range of sanctions. Under the amended guidelines, criminal history, crime of conviction, number of prior parole violations, and current behavior leading to the parole violation are taken into consideration. The sanctions imposed under the guidelines are intended to provide individuals with a history of violent behavior with the most severe penalties and those with substance abuse problems with the necessary treatment.

Under the new regulations there are five sets of mitigating circumstances which if established, allow for a departure from the mandatory penalties imposed under the revocation guidelines. These include factors such as the parolee’s track record on parole prior to the current violation and whether parolee is the custodial parent or primary caregiver to a dependent child. If one or more mitigating circumstances apply, the parolee can be revoked and restored to supervision if it is determined that: (1) the parolee’s needs could be adequately addressed in the community with supervision; and (2) restoration to supervision would not compromise public safety.
Parole revocation is a highly individualized process that takes into account the various factors and circumstances surrounding individual violations. To learn more about New York’s parole revocation procedures please visit Parole’s Community and Corrections supervision website.

Sasha Graham, Legal Intern