I received a call recently from a gentleman who was on probation and his agent was attempting to revoke his probation and send him back to jail. When I recommended that he obtain an attorney to fight for him he asked, “why would I need an attorney if I am probation?” This made me realize that there is not much discussion of the risks associated with a revocation hearing and many people do not release they have a right to legal representation.
No one wants to serve time in jail or prison so the outcome of the revocation hearing is vitally important. I believe that having aggressive representation at the revocation hearing is extremely important given the inherent risks of these proceedings. First, unlike a criminal case, the standard of proof required at the revocation hearing is not beyond a reasonable doubt. The probation agent need only present evidence sufficient to prove a violation by a preponderance of the evidence. This means, in a nutshell, sufficient evidence to prove that the person “probably” committed a violation. In addition, the rules of evidence do not apply at revocation hearings so the probation agent can use hearsay (out of court statements) to substantiate an allegation and the reliability of such statements is sometimes dubious at best.
One of the biggest risks is whether the defendant should testify at the hearing. This decision should not be made lightly because the defendant will be cross examined by the probation agent and the judge. Everything that the defendant says could be used against him or her in a subsequent criminal proceeding. (It is not against double jeopardy to be charged criminally and face revocation for the same conduct) Finally, in the case of a revocation hearing related to extended supervision or parole, the judge is not bound by a recommendation by the agent or the defendant. This means that the judge would be free to reconfine the person for up to the maximum amount of time available for forfeiture regardless of the argument by either party.
It is also important to understand the defendant’s sentence structure so the attorney can assist the person in making an informed decision as to how to proceed in a revocation proceeding. A quick summary of the most common sentencing structures may be helpful. If a person is placed on probation, the sentencing court has two options. The court can either impose and stay a jail/prison sentence or withhold the sentence. (Probation is not considered a legal sentence although it very much feels like a sentence to the probationer). If the court imposes and stays a sentence the probationer will know what the result will be if his or her probation is revoked. For example, if the judge imposes and stays one year in jail that is the length of time the person would serve if the probation was revoked. If the court withholds the sentence then if probation is revoked the person returns to court and the judge will impose a sentence at that time. Likewise, if a person is released into the community following a prison sentence and the extended supervision or parole is revoked, the person could be ordered back to prison for a period of time.
In a typical case, if the agent believes that the person has violated a rule, or rules, of supervision they will typically detain the person in custody pending an investigation. The revocation hearing must take place within 50 days after the person is taken into custody for the violations. However, if the revocation hearing is not scheduled until after the 50 day period it does not mean that the revocation cannot proceed. Rather, the legal remedy for violating the 50 day timeline is that the person can apply for release with the sheriff. The sheriff can grant release, but is not required to do so.
Approximately 10 days before the revocation hearing, the person and his or her attorney will get a copy of the revocation packet. This packet will include the specific allegations leveled against him or her and other critical information related to custody credit. It is vitally important that this information is thoroughly reviewed and possible defenses identified. In addition, the best criminal defense attorneys will request a copy of the agent’s chronological log, which will likely include information related to the positive things that the person did on supervision such as obtaining gainful employment, reporting to the agent on time, and providing clean urinalysis tests.
At the hearing, the probation agent will attempt to present sufficient evidence to substantiate each allegation. The defendant has the right to test the reliability of such evidence and also has the right to present evidence as well. At the conclusion of the case, the judge must issue a written decision within 10 days stating whether the supervision should be revoked. The judge will decide what allegations, if any, were proved by the evidence. If the judge decides there was sufficient evidence to justify revocation of probation then the person will either return to court or start serving a jail/prison sentence depending on the sentence structure discussed above. In the case of a parole or extended supervision scenario, the judge must make two decisions. First, the judge must decide whether to revoke the supervision. If there is a revocation, the judge must also decide how much time the person must serve in prison. There are a lot of factors that go into these two decisions and there are plenty of areas where effective advocacy can make substantial differences in the outcome of the case.
If you are on supervision (probation, parole, or extended supervision) and you are faced with a revocation hearing it is important to consult with the best criminal defense attorney you can find. At our law firm in Madison WI, we understand the importance of these proceedings and work hard to ensure our clients achieve the best possible result.