Probation & Parole Violations: What Really Happens After Sentencing

Welcome to Reasonable Doubt, James Hopkins for the Defense. Welcome to Reasonable Doubt to James Hopkins for the Defense with Attorney James Hopkins. James Hopkins is a top tier criminal defense attorney with over 30 years of experience in New York State and federal courts. A former ADA, he's tried hundreds of high state cases from homicide to drug crimes to embezzlement, earning his place among the top 100 trial lawyers. An expert in forensic DNA evidence and a fierce advocate, Hopkins delivers strategic, high impact defense for every client. I'm Leon Lyon and today we are talking about what happens when someone on probation or parole is accused of violating the terms and how to protect your freedom after sentencing. This is probation and parole violations, what really happens after sentencing. Hello, James. Hello. How are you today? Wonderful. James, a lot of people think that the case is over once they are sentenced. What does it mean to still be under supervision on probation or parole in New York? Well, there are a set of guidelines that are imposed on the probation or the parolee and failure to abide by those conditions will result in recentencing and keep in mind that the person who's on probation or parole has already been convicted of an offense. So the presumption of innocence for that underlying offense is gone. So it is simply a matter of recentencing and in New York, there is no requirement that proof of the new violation be made beyond a reasonable value, it's by a preponderance of the evidence because the judge has already imposed a sentence on that individual and if his or her order has been violated regarding the sentence then they are free to resent and see individual in accordance with what they think is fair. So that's the initial problem. Once there's a violation you're not entitled necessarily to bail, although sometimes bail can be set on probation violations usually the individual is held pending the resolution. And of course if the violation is because of a new criminal charge then you are dealing with two separate acts and potentially two separate courts simultaneously. Got it. Well, what kind of things can count as a violation? Is it always committing a new crime or can it be something technical? All the technical violations are oftentimes the basis for filing a report with a judge. Failure to report, failure to keep counseling appointments, being terminated from a counseling program, all these can lead to violations being filed with a judge. Now the seriousness may be open to interpretation and especially people who are undergoing drug treatment or alcohol treatment, screwing up every once in a while is not unexpected. But if the person is considered a habitual screw up then it's more likely that the incarceration is going to result. Wow. So if somebody is accused of violating probation what is the first step in that process? Okay, they will bring that individual in front of the judge that sentenced them and usually you enter a denial to the charge as much like you do in an arraignment in a criminal matter. And then you ask for specifications as to what precisely is the violation that you're accused of. And then a negotiation process ensues between the judge, the probation officer, and the defense attorney. If there is, for instance, if somebody is ordered not to invite alcohol and they've had some but maybe there has been an undiagnosed alcohol problem that people weren't aware of. Sometimes the violation can be resolved by getting that person into treatment. That's something that the probation officer has to feel is going to be worthwhile and the judge thinks is best for society. And obviously the defendant has to agree with undertaking that course of treatment. So if everybody is on board that could be a resolution and then the individual could be restored to probation. Other things are more problematic. There is perhaps an order of protection that's been put into place and the individual is accused of violating it. Well, that's another that's a court order that the judge may feel less inclined to overlook. So it depends on the circumstances of the violation. It depends on the progress that the probation or parole is made in maintaining a prime free life. And it depends on ultimately what the judge thinks is appropriate on circumstances. So you've already indicated that this is a very different situation than just the regular trial. Where's I view? What's the difference between a probation violation hearing and a regular criminal trial? Well, for one, you don't get a jury. It's only the judge who makes that decision. And keeping in mind, it's the same judge who was likely to impose that sentence. So the egregiousness of the violation is going to go a long ways towards this judge deciding whether or not this individual is deserving of a break or not. If somebody had been on probation for three or four years without any problems and then just slipped up, it's more likely the judge is going to consider like something other than like a sentence of incarceration. But if this person has had multiple violations and been restored and then screwed up again, at some point they get very tired of that and the judge is likely to impose a sentence of incarceration. So are the same rules of evidence improved used in both situations? Well, not exactly. There are rules of evidence obviously in both cases but because of the nature of the hearing as opposed to a trial, some reports are allowed in and hearsay documents are allowed in. It's not as strictly considered as in a trial. Among other reasons, the judge is there to understand the rules of evidence himself or herself and they can kind of ship through what is relevant, what is extraneous and make a determination based on the available evidence. We've been talking mostly about probation, but what about parole? Who decides whether a violation happened and what penalty to impose there? Well, there's a completely different set of procedures in parole. Parole matters result in when a state prison sentence, an individual who has been sentenced to state prison completes a certain portion of that sentence and is released under the supervision of the parole people. A parole officer, much like a probation officer is assigned to that individual. And there are definite rules that are assigned at the time of the individual's release. They will sign a document stating exactly what is permitted and what is not. Obviously, a commission of a new offense could result in a violation of parole, but oftentimes it has to do with failure to maintain employment or eating employment without permission or staying away from home overnight without permission, associating with other people known to have a criminal involvement. There are a set of rules that have to be filed, and if they're not, or the parole officer files a violation, and oftentimes takes that individual back into custody, there are administrative law judges who handle, who exclusively handle parole matters. And those are the people that unlike the sentencing judges, they are concerned only with violations of parole. Well, you just listed a whole bunch of ways people can violate parole. What is the most common misunderstandings people have about what they can and can't do while on supervision? Well, the parolees are a fairly extensive list of do's and don'ts. And when they accept the terms, they're expected to abide by each and every one of them. You know, clearly there are times when things are done inadvertently. Like, you know, I had a case not too long ago where the individual was told he had to stay in a group home. Well, he showed up at the group home and there was no beds available. So, you know, he attempted to reach his parole officer, was not able to, and left for it various messages for him, but it still resulted in a violation because he was not there when the parole officer checked. We were able to negotiate a resolution for that matter, short of sending him back for the maximum term, but it still, you know, resulted in him sitting in jail for a while while we negotiated the circumstances. So, that one was out of his hands, but there are, you know, the ones where somebody just you know decides not to, you know, to go home one night or or decides to hang out in the bar all day long. You know, those are pretty simple to, you know, for a probation officer to detect and to act on. So, you mentioned earlier that sometimes treatment or counseling can replace jail time. How common is that? Well, it depends on the nature of the case. You know, if somebody has charged with a violent felony offense, it is less likely that they're going to like expend the time in effort to get that individual into into a treatment program. On the other hand, if it's a DWI or a narcotics violation, and that person is involved in the narcotics trade because of his own or her own addiction, those are likely mandated services in here. The idea is to keep the individual out of the criminal justice system. And if they're only there because of substance abuse addictions, then it makes sense to try to get proper treatment for that person. Absolutely. Well, you've handled plenty of these cases. What practical steps make the biggest difference when defending a violation hearing? Well, the, you know, the first thing I tell my clients when they're placed on probation is to, you know, try to maintain a good relationship with their P.O. If you're always late to an appointment or if you're like, you don't provide the documents that are requested of you, you're going to start off on the wrong foot. If it turns out that there's something that comes up down the road, you know, the prior relationship goes a long ways towards, you know, towards whether or not that P.O. is going to be recommending something other than incarceration. So especially in the beginning, and I'm talking mostly on probation right now, because people who are on parole have already gone through, you know, the state prison incarceration where there's a lot of rules in place anyhow. But the people on probation, you know, oftentimes the probation department will jump all over them in the beginning to see how they react. And, you know, it's important to, you know, to follow their rules, their regulations and to maintain a good attitude. Once they have established a rapport with the probation officer, I think in general most people ease off a little bit and they understand that things are not black and white. Sometimes, you know, there's a snowstorm around here and you're a little late in reporting or there's, you know, the other, you know, family emergencies that, you know, if you have established that you are a credible person while on probation, you're more likely to be given the better of it now. Sounds to me like as in real life, communication is key. Very much so. Well, what advice as we're wrapping up, what other advice would you have to give to clients who are still serving probation or parole about, you know, final final final here, how to end up back in court in the first place? Well, the, it's important to realize that, you know, from the judge's perspective, they're on probation in lieu of sitting in a jail cell. So, you know, the judge has already considered their circumstances and in the judge's mind, this individual has been given a break. Now, reporting to a probation officer every week and not being allowed to go into certain bars and restaurants and having curfews are, they're all, it's pain, they have to deal with that and many people resent it. But from the judge's perspective, it's better than sitting in a, you know, in a cell and being locked away from family and friends and, you know, being allowed to, you know, to participate in the workforce. So, it's, it's important to kind of, you know, take a step back and look at how overall the, you know, it's being perceived. Now, that doesn't mean that, you know, they're, you know, sometimes, you know, unreasonable restrictions are being placed on a client and sometimes that, you know, there's a big family event that they're not being allowed, you know, to leave the area, to go attend. In those circumstances, you know, there is an avenue by which your attorney can petition the judge and ask for permission to do that, separate and apart from whatever the probation officer recommends. But it's much easier if you get a good report from the PO when you're making those kind of requests. So, establishing a good relationship early on is, is good advice. Well, and as always, great advice coming from you. And that is it for today's episode of Reasonable Doubt James Hopkins for the Defense. To learn more about attorney James Hopkins and his work defending clients across New York State and in federal court, visit James Hopkins law firm.com. Thanks for listening and remember to like, leave a review and subscribe to the show so you don't miss any episodes. Thank you James. Thank you very much.