A probation or parole revocation can severely impact your life and send you to jail or prison. If you face revocation, Houston Criminal Lawyer Charles Johnson can fight the allegations and/or assist you in getting an alternative to revocation. Attorney Charles Johnson is experienced with revocation proceedings. He will provide you with the information and legal representation you need to fight the revocation, get an Alternative to Revocation (ATR), or limit the jail or prison time.
The Charles Johnson Law Firm can expertly assist you with any of the following:
- Probation or Parole violations
- Extended supervision violations
- Probation or Parole revocation hearings
- Reconfinement hearings
- Negotiating with probation/extended supervision agent
Revocations are often based on new charges but sometimes just on mere allegations. It is important to contact the experienced Houston Probation Attorney at the Charles Johnson Law Firm early on in your case so we can work to negotiate an alternative to revocation or seek lower re-confinement recommendations.
Background
The use of probation and parole is governed in part by competing philosophies, classicalism and positivism. In short, classicalists believe that offenders choose their actions and, therefore, in order to prevent (or deter) future criminal acts, such individuals should be punished. Conversely, positivists believe that individuals are forced into the choice of committing crime through no fault of their own and, therefore, the conditions and/or behaviors that caused the action should be remedied, ultimately resulting in rehabilitation of the offender.
Legislative acts and public sentiment further dictate the application of probation and parole. Therefore, universal and consistent definitions and applications of probation and parole are not available as the methods of punishment and governing philosophies have evolved and moved toward the twenty-first century.
While these factors contribute to a lack of consistency when dealing with probation and parole, the primary obstacle to detailing specific state protocols is that the practice of granting probation and/or parole at the state level is dependent on the discretionary powers of select individuals, such as the prosecutor, the judicial authority, and the parole board, to name just a few.
Probation
Definition
Probation is a court-imposed sanction that “releases a convicted offender into the community under a conditional suspended sentence.” This practice assumes that most offenders are not dangerous and will respond well to treatment. In fact, the average probationer is a first time and/or non-violent offender who, it is believed, will be best served by remaining in the community while serving out the sentence. Probation is a form of punishment issued by a criminal court in place of incarceration. The probationer is generally considered to be a non-violent offender who has been convicted of a crime but is not considered a danger and is believed to be better served by being placed on probation instead of in a jail cell. Probationers are typically convicted of misdemeanor offenses, have already served partial jail time for the offenses or are first time offenders or minors. Probationers are often forced to modify their lifestyle by reporting to a probation officer, living in certain locations, abiding by a set curfew and avoiding association with known criminal offenders.
History
Historically, probation does not involve incarceration, making it a front-end solution to address the overcrowding problem in U. S. prisons and jails. While the immediate goal of any probation program is rehabilitation, in reality it is more a necessity than an instrument. As a result, other programs have been developed under the umbrella of community corrections that utilize elements of conditional release resulting in the expansion of probation-type programs.
Probation developed as a result of the efforts of philanthropist, John Augustus, to rehabilitate convicted offenders, although references to similar practices exist as early as 437-422 BC. It was favored because it allowed judicial authorities a great deal of discretion when imposing sentences, thereby providing the opportunity to tailor sentences to a particular offender, in theory allowing for the greatest possibility of rehabilitation. While sentences of probation vary widely across and within jurisdictions, the maximum length of time that one can be under supervision is 5 years (60 months).
The functions of probation are difficult to state definitively. It is known that at its inception, John Augustus’ goal was behavioral reform. This reflects the sentencing goal of rehabilitation. Fundamentally, it is believed that by allowing the offender to remain in the community, the system is providing a second chance. Further, support and guidance from probation officers may achieve the aim of guiding the offender towards a law-abiding existence.
Given that probation is no longer limited to first-time, non-violent offenders who pose minimal risk to the community, the reality is significantly different. Coupled with low confidence in the effectiveness of rehabilitative success and a burgeoning offender population, actual practices tend to be dictated by conflicting goals on both an individual and administrative level. In an aggressive bid to prevent jail or prison overcrowding, several alternatives to incarceration have developed. Some such programs enable offenders traditionally incarcerated to be released into the community, thereby forcing a shift in focus from rehabilitation to control and supervision.
Intensive Supervised Probation (ISP)
ISP is a form of release into the community that emphasizes close monitoring of convicted offenders and imposes rigorous conditions on that release, such as the following:
- Multiple weekly contacts w/officer
- Random and unannounced drug testing
- Stringent enforcement of conditions, i.e.,: maintaining employment
- Required participation in treatment, education programs, etc.
Individuals on ISP are those who most likely should not be in the community. The restrictions placed on them are often excessive and the level of direct, face-to-face contact required is believed to significantly deter, or at least interfere, with any ongoing criminal activity.
Shock Probation and Split Sentencing
Shock probation/split sentencing is a sentence for a term of years, but after 30, 60, or 90 days, the offender is removed from jail or prison.
While these terms are used interchangeably, they are actually two different activities. In shock probation, the offender is originally sentenced to jail, then brought before the judge after 30, 60, or 90 days and re-sentenced to probation. In split sentencing, probation is part of the original sentence requiring no additional appearance before the judge.
Revocation
Probation revocation occurs when an offender who has been sentenced to serve his punishment in the form of probation rather than incarceration violates the terms of his probation and is imprisoned. Probation can be revoked for a variety of reasons and may have varying consequences for the individual who has had his probation revoked, depending location and the regulations of the law enforcement agency involved.
Probation revocation means that the offenders probation officer has decided that the offender is not complying with the terms that were set for his probation and should be imprisoned for the remaining length of his sentence. Probation officers have to meet with a judge during a hearing and present evidence that the probationer is not fulfilling the terms of the probation before the probation will be revoked. Individuals are notified when their probation is revoked. If they do not turn themselves in to the court or police, a warrant will be issued for their arrest.
Reasons for Probation Revocation
Probation revocation occurs when an probationer violates the terms of her unique probation sentence. This could mean going outside a specified area such as a state or county, not being home prior to a specified time, failing to pay fines, check in with a probation officer or complete community service. Probation may also be revoked if the probationer commits or is accused of committing another crime during the time of their probation.
Consequences of Probation Revocation
When probation is revoked, the offender is sent to jail to serve out the remainder of his sentence. This means that the offender is completely incarcerated for an amount of time that will be decided by the judge during a probation revocation hearing where the probation officer reports why he believes the offender’s probation should be revoked. In some instances, depending on the crime and the severity of the issue that caused probation to be revoked, an offender’s time on probation will be taken into consideration. She may receive a jail sentence that is shorter than her original sentence, since the time spent on probation can be considered to have been part of the time served for the crime.
Since probation is a conditional release, it can be revoked, or taken away, if the conditions governing release are not met (technical violation) or if a new crime is committed during the probationary period (new offense).
Probation revocation is initiated by the probation officer’s belief that a violation warranting revocation has occurred. As a result of the 1973 case Gagnon v. Scarpelli (411 U.S. 778), the Supreme Court decided that where “liberty interests” are involved, probationers are entitled to retain certain due process rights. Such rights include: (1) written notification of the alleged violations; (2) preliminary (or probable cause) hearing at which a judicial authority will determine whether sufficient probable cause exists to pursue the case; and (3) if warranted, a revocation hearing.
If a revocation hearing is scheduled, probationers have the right to testify in their own behalf, may present witnesses, and may have an attorney present. While the Gagnon court was vague regarding the right to court appointed counsel at a revocation hearing, most jurisdictions do provide the right to appointed counsel.
The standard of proof required at a revocation hearing is a “preponderance of the evidence”, lower than that required at a criminal trial. Possible outcomes include return to supervision, reprimand with restoration to supervision, or revocation with imprisonment.
If you were placed on deferred adjudication probation, a probation revocation could result in a conviction on your criminal record or possibly a jail or prison sentence. Houston Criminal Lawyer Charles Johnson provides aggressive and thorough representation for clients facing a revocation of probation. His primary goal when representing a client in a probation revocation proceeding is to explore all defenses and possible alternatives that could avoid revocation of your probation.
Early Intervention in Houston Probation Violations
If a motion to revoke probation has been filed against you or if you are potentially facing the possibility of probation revocation, the time to act is now! Early intervention in a probation violation matter can often make the difference between facing a probation revocation hearing, or indeed whether or not a motion to revoke probation is filed at all. Houston Criminal Lawyer Charles Johnson has the experience necessary to make the court, probation officer, and the District Attorney’s Office aware of all circumstances regarding your case and to explore all defenses and possible alternatives to avoid revocation of your probation.
Parole
Definition
Parole is the “conditional early release from prison or jail, under supervision, after a portion of the sentence has been served.” This practice assumes that the offender successfully demonstrated conformity to the rules and regulations of the prison environment and shows an ability to conform to society’s norms and laws.
History
The word, parole, derives from the French “parol” meaning “word of honor” and references prisoners of war promising not to take up arms in current conflict if released. How that concept came to apply to the early release of convicted, often violent, offenders is less clear. The first documented official use of early release from prison in the United States is credited to Samuel G. Howe in Boston (1847), but prior to that, other programs using pardons achieved basically the same outcome. In fact, as late as 1938, parole was simply a conditional pardon in many states.
Alexander Maconochie (England) ran the Norfolk Island prison. During his tenure, he instituted a system whereby inmates would be punished for the past and trained for the future. He believed that inmates could be rehabilitated so he implemented an open-ended sentencing structure where inmates had to “earn” their release by passing through three stages, each stage increased their liberty and responsibilities. Inmates had an open time frame in which to earn the next level. Compliance advanced them; infractions resulted in a return to the previous stage, thereby lengthening the sentence. The open-ended sentences (today known as indeterminate sentencing) allowed the administration to ensure that when finally released, an offender’s behavior had been successfully reformed. Eventually, Maconochie was removed from his position under criticism that his program “coddled” criminals.
At about the same time, Sir Walter Crofton was developing a similar program in Ireland using “tickets of leave”. The “Irish System” as it came to be known, employed a similar practice of allowing inmates to earn credits towards early release. However, once the “ticket of leave” was achieved, release from custody was conditional. The releasees were supervised in the community by either law enforcement or civilian personnel who were required to secure employment and to conduct home visits. These “supervisors” represented the forerunner to today’s parole officer.
In the United States, Zebulon Brockaway (Superintendent) employed elements from both the Irish and Great Britain models in managing the Elmira Reformatory during the 1870s. Brockaway is credited with the passage of the first indeterminate sentencing law in the United States as well as introducing the first good time system to reduce inmates’ sentences. However, releasing the offenders was only part of the problem and initially, the greatest challenge was providing adequate supervision once release had been granted.
By 1913, it was clear some independent body was required to supervise inmates in the community and by 1930, Congress formally established a United States Board of Parole. It appeared, at least for awhile, that initiatives and programs were developing that could make parole a viable and useful tool of the criminal justice system. But unfortunate timing contributed ultimately to its downfall.
In 1929, the Great Depression hit the United States. An immediate result was a sharp increase in prison populations. However, the high cost of maintaining prisons as well as a lack of available personnel to staff them made new construction prohibitive and contributed to the popularity of parole. While alleviation of the overcrowding problem is often cited as a secondary (or latent) goal, the reality is that as a back-end solution, parole is vital to the maintenance of the correctional system.
With the onset of the twentieth century, philosophers began to examine the social and psychological aspects of criminal behavior. This heralded a shift from classicalist thinking towards positivism. Under positivism, actions are believed to be caused by forces beyond one’s control (such forces could be psychological, biological, or sociological in origin). Therefore, parolees were now viewed as “sick” and the parole department was charged with the responsibility of “fixing” them.
Positivism is consistent with a less punitive approach to sentencing and generally involves an indeterminate sentencing structure allowing for the possibility of early release if the offender demonstrates that they have been successfully rehabilitated. As such, it fit well with the Elmira system and the timing afforded officials the opportunity to use parole as a means to relieve the overcrowded conditions that had developed during the depression.
The fact that parole involves some incarceration suggests that the average parolee has committed a more serious crime than the average probationer and, hence, poses a greater risk to the community. Therefore, primary goals of parole must include crime deterrence and offender control. And given that most offenders will eventually return to the community, a rival goal is reintegration, or the facilitation of an offender’s transition from incarceration to freedom.
Unfortunately, it appeared during the 1980s that parole was failing. Street crime rates during this period skyrocketed and in many cases, the crimes were perpetrated by individuals who were released into the community prior to the official expiration of their sentence. This reality led to the development of penal philosophies espousing “tough on crime” approaches and demanding “truth in sentencing”. Such philosophies warned criminals, “do the crime, do the time” and resulted in radical changes to sentencing practices across the country that indicated a return to a more punitive sentencing structure.
Revocation
Since parole is a conditional release, it can be revoked or taken away, if the conditions governing release are not met (technical violation) or if a new crime is committed during the probationary period (new offense). In this manner, it is similar to probation; however, it differs in that probation is governed by judicial decisions whereas parole is governed by administrative procedures. As a result of the administrative nature of parole, the revocation process is so varied among the jurisdictions.
In large part, however, most minor infractions are dealt with by the parole officer and may not necessitate involvement of the parole board. Some jurisdictions empower the parole officer to immediately take a parolee into custody for 24 (New York) to 48 hours (Pennsylvania) for purposes of obtaining an arrest warrant. This practice is typically employed when the offender represents an immediate threat to public safety.
With respect to the legal protections afforded to parolees, the first case to explore this issue was Morrissey v. Brewer (1972). The Morrissey case explored the extension of due process rights of (1) written notice to parolee prior to general revocation proceeding; (2) identification of the violations being presented and any evidence being used to prove that the violation took place; (3) the right of the parolee to confront and cross-examine accusers (subject to exceptions) and (4) a written explanation for the decisions regarding the revocation of the parole and what evidence was employed in making that decision. Perhaps the greatest contribution of the Morrissey case was the creation of a two-stage process wherein first, probable cause that violations had occurred had to exist in order to go to the second stage, which was the actual revocation hearing.
Interestingly, the Supreme Court did not choose to create a bright line rule for the right to court-appointed counsel at a revocation hearing. For the most part, however, most jurisdictions have followed the decision in Mempa v. Rhay (1967). While this case specifically dealt with the rights of probationers, it has been applied recently to parolees as well. Basically, the Supreme Court wrote that “any indigent is entitled at every stage of a criminal proceeding to be represented by court-appointed counsel, where substantial rights of a criminal accused may be affected.” In sum, the Supreme Court considered the liberty interests of the probationers and decided that a probation revocation hearing constituted a “critical stage” which dictated adherence to due process protections. This rationale has consistently been extended to include parole revocation hearings as well.
Abolishment
As of 2001, 15 states (Arizona, California, Delaware, Illinois, Indiana, Kansas, Maine, Minnesota, Mississippi, Ohio, Oregon, New Mexico, North Carolina, Virginia and Washington) and the Federal government have eliminated parole programs in lieu of a determinate model of sentencing reflective of a more retributive approach to punishment. (New York Gov. George Pataki proposed making New York the sixteenth state)
Such an action may seem warranted given the apparent inability of the system to guarantee the protection of the citizens and the end result is predictable. Overcrowding still represents the greatest challenge to the correctional industry. In fact, three states (Connecticut, Colorado, and Florida) reinstituted the parole boards after eliminating them due to the unforeseen overcrowding problems. The reality is that removal of parole ultimately leads simply to a shift in power from parole boards to prosecutors, in that the option most often exercised in states without parole, is probation.
Contact Houston Probation Lawyer Charles Johnson if You are Not Ready to Give Up – Jail is not the Only Option
Once we have dissected your probation revocation complaint, we will mount an aggressive defense, knocking out many of the counts against you. In the end, if you do have some counts that are proven to the court, we can often have probation reinstated, provided you accomplish some heroic steps at our direction prior to the revocation hearing. We will consult with you and our team of treatment experts to build a track record of success prior to your probation revocation hearing. These efforts will show the District Attorney and the judge that you are worthy of another chance at probation, and that you are not a danger to the community. With a well thought out and implemented plan, you have more options than jail or prison if the judge revokes your probation.
If you are accused of violating the terms of your parole or probation or have questions regarding a potential probation offense, please call at anytime for a free initial consultation.
Houston Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week.
Call us at 713-222-7577 or toll free at 877-308-0100.
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