106 ICAOS Training Probable Cause Process Rule 5
106 -ICAOS Training Probable Cause Process Rule 5. 108 [Revision 1/7/2020 -Includes Rules Effective 4/1/2020] Be Ready for a Test at the End.
ICAOS Training Series • 101 -Transfer & Reporting Instructions Eligibility • 102 -Transferring Supervision • 103 -Supervision in the Receiving State • 104 -Reporting Behavior Requiring Retaking • 105 -Mandatory Retaking for New Violent or Felony Crimes & Absconders apprehended in the Receiving State • 106 -Probable Cause Hearings
Training Objectives • Purpose of Rule 5. 108 & PC explained • When a Probable Cause Hearing is required/not required • Probable Cause Hearing • Report Requirements/Results • Waiver • When Probable Cause is found/not found
US Supreme Court Decisions • Morrisey vs. Brewer 408 U. S. 471 (1972) (parole) • Gagnon vs. Scarpelli 411 U. S. 778 (1973) (probation) Why is this important to Compact Offenders? • Geographical concerns (violations committed outside of Sending State) • Without PC, violations may be barred from consideration for revocation (Sending State) • Offenders are ENTITLED when revocation is possible
Retaking vs Revocation • Retaking: Process to remove or cause an offender to be removed from the Receiving State • Mandatory: Receiving State invokes based on ‘revocable’ non-compliant behavior • Discretionary: Sending State may initiate retaking for ANY reason unless pending felony or violent charges exist • Revocation: Sending State terminates supervised release and incarcerates the offender
Purpose of PC Hearing • Test Merit of Violation • Provides evidence the offender likely violated his or her conditions of supervision • Ensure violation meets definition of ‘Behavior Requiring Retaking’ • Receiving States should not arbitrarily revoke relocation once granted • Creates Record • To be used in possible subsequent revocation hearing • Who, What, When & Where? ?
When an Offender is not Entitled to a PC Hearing • No possibility violations committed in receiving state will be used in revocation proceedings in the sending state • e. g. Offender simply returning to resume supervision in Sending State • New conviction • Rule 5. 102 • Conviction is conclusive proof of violation
When a Compact Offender is Entitled to a PC Hearing 1. Custodial detention based on violations • • initiated by either the receiving or sending state sanctioning or preliminary-justify detention 2. Violations committed in receiving state may form basis for revocation of supervision • • Retaking for violations-creates record for sending state and substantiates the violations Violations imposed by EITHER sending or receiving state (Reminder!! Notification (via Progress Report) must be made at the time condition is imposed!) 3. Absconder apprehended in the receiving state
Preliminary Hearing vs PC Hearing 1. Custodial detention based on violations • • Sanctioning (not retake/revocation) OR Preliminary hearing justifying detention May or may not meet requirements of Rule 5. 108 Depends on level of detail • Does hearing record CLEARLY articulate facts and circumstances SUPPORTING retaking the offender & recommendation for revocation? ?
PC Hearing & Retaking 2. Violations committed in receiving state may form basis for revocation of supervision • Retaking for violations-creates record for sending state and substantiates the violations • Ensures certain due process RIGHTS are afforded to the offender prior to revocation hearing 3. Absconder apprehended in the receiving state • Confirms validity of previous Violation Report • Warrant & Detainer must remain in place!
Prior to the PC Hearing A Probable Cause Hearing is Required! Now What? !? • Offender should receive written notice of the alleged violation(s) • Notice of hearing (option to waive) • Wavier discussion coming up!
PC Hearing Elements • Conducted by neutral and detached person • Close proximity to where alleged violations occurred • Administrative hearing • Fact finding, no determination of guilt • Level of due process is usually less than a revocation hearing
Offender’s Rights at PC Hearing What is an offender entitled to at a PC Hearing? • Disclosure of non-privileged/non-confidential evidence • Opportunity to be heard in person, present witnesses and evidence • The opportunity to confront and cross-examine adverse witnesses • unless the hearing officer determines that a risk of harm to a witness exists
Hearing Report Requirements Ensure reports meets local AND Rule 5. 108 requirement! • Due to sending state within 10 business days after the hearing • Must include: • Date, time, location of the hearing • Who was present (who testified/who did not) • Clear & concise WRITTEN summary of ALL testimony • What evidence was used in decision? • Specific statements as to which violations where PC found, not found and offender admitted to
Waiver of Probable Cause Hearing Waiver acceptable when: • Offender is apprised of his or her rights to hearing • No contest to retaking and clearly aware of the facts supporting retaking • Signed admission to one or more violations • Admission must be of sufficient gravity to justify revocation in receiving state
Uploading Hearing Report or Waiver Establishing Probable Cause per Rule 5. 108 when reporting the violation may speed up the retaking process! Ensure Hearing Reports meet requirements of Rule 5. 108 PC documentation can be updated/added, via Addendum to Violation Report too!
After the PC Hearing… If Probable Cause is established, Receiving State Sending State SHALL hold the offender in custody Notify the receiving state of the decision to retake within 15 business If not in custody, the offender is taken days of receipt of the report into custody at this time SHALL retake offender within 30 calendar days once offender is in custody solely held on the sending state’s warrant
If Probable Cause is NOT established, After the PC Hearing… Receiving State • Notify the sending state to vacate the warrant • Vacate the receiving state’s warrant • Release the offender back to supervision within 24 hours of the hearing if the offender is in custody • Continue Supervision Sending State • Vacate the sending state’s warrant
Denial of Bail or other Release Conditions An offender against whom retaking procedures have been instituted by a sending or receiving state shall not be admitted bail or other release conditions in any state. Rule 5. 111
Cost Responsibilities Associated with Retaking Sending State Receiving State Costs incurred to remove an offender from the receiving state Cost to detain the offender
Case Closure • Once the offender is retaken by the sending state a Case Closure Notice needs to be completed in ICOTS.
Liability • Liable is defined by Webster as “Legally obligated; responsible…” • All compact member states can be held liable for circumventing or violating the ICAOS rules. • ICAOS rules are federal law and there is a legal obligation to follow and enforce the rules as written.
Scenario #1 1. The receiving state submitted a violation report for conviction of a offense which included a copy of the court order. Under the rules of the compact the receiving state is not required to conduct the probable cause hearing for this case. a) True b) False
Scenario #2 2. Anyone in the receiving state can conduct a probable cause hearing, including the supervising agent. a) True b) False
Scenario #3 3. The receiving state sends a violation report indicating the offender has waived his/her right to a probable cause hearing. However, the waiver does not include an admission of violating a condition of supervision. Since the wavier is signed by the offender, it is still valid. a) True b) False
Scenario #4 4. The sending state receives the probable cause hearing results from the receiving state but it does not include a summary of the testimony, the date and time of the hearing or the evidence relied on to make the decision. The probable cause hearing results are valid and the sending state must move forward with retaking/returning the offender. a) True b) False
Scenario #5 5. The sending state should be notified via Progress Report anytime a new condition is imposed on the offender. a) True b) False
Questions
- Slides: 28