Immediate Sanction Probation

Pilot Project

Status Update

Virginia Criminal Sentencing CommissionMarch 18, 2013

In 2012, the General Assembly directed the Virginia Criminal Sentencing Commission to implement an immediate sanction probation program in up to 4 pilot sites

The program is designed to target technical probation violators

The concurrence of the chief judge of the circuit court and the Commonwealth’s attorney is needed for the locality to participate as a pilot site

Pilot program will last until June 30, 2014

Directive for Immediate Sanction ProbationPilot Project (2012)

2Background

Hawaii’s Opportunity Probation with Enforcement (HOPE) program was established in 2004 by Judge Steven Alm of Hawaii’s First Circuit

Focus is on offenders at-risk for failing probation

The goal is to improve compliance with the conditions of probation by applying swift and certain sanctions for each violation

A federally-funded evaluation of HOPE found a significant reduction in recidivism rates, as well as technical violations and drug use among participants

3Background

Model for Virginia’s Pilot Program

Judges

Commonwealth’s Attorney and staff

Probation officers

Public defender’s office / court-appointed attorneys

Arresting agencies: Sheriff’s Office and/or police department

Jail administrators: Sheriff’s Office or regional jail

Clerk of Court and staff

Who are the key stakeholders?

4Key Components of Pilot Project

Offender must:

Be 18 years of age or older

Not have any current or prior violent convictions

or adjudications (as defined

in § 17.1-805)

Be on supervised probation for a felony

conviction

Be under supervision in the same jurisdiction

where the offender was sentenced

Not have a diagnosis involving a severe mental

health issue

What offenders are eligible?

5Key Components of Pilot Project

Candidates for the program will be identified

based on risk:

1. Risk of recidivism / risk of violent recidivism

Determined by the COMPAS risk

assessment instrument already

used by the Department

of Corrections

2. Risk of failing probation due to revocation

Accumulating multiple technical

violations increases likelihood that the

offender’s probation will be revoked

How will candidates for the program be identified?

6Key Components of Pilot Project

How does an offender get into the program?

7Key Components of Pilot Project

Offender will be placed on the court’s docket for judge to consider offender for program

Risk of recidivism/violent recidivism

Determined by the COMPAS risk assessment instrument

Represents risk of failing probation due to revocation

Ideally, offender should appear before the judge within 7 days

Offender should have or be assigned counsel

If the offender is put into the program:

Offender’s probation will not be revoked

Show cause will be continued

Sentence will remain suspended

Conditions of suspended sentence will be

modified to require participation in the program

Judge will warn new participants that probation

terms will be strictly enforced and violations will

have immediate consequences

How does an offender get into the program?

8Key Components of Pilot Project

Program participants will be frequently reviewed

by probation officer to ensure that there are no

violations of terms or conditions

When first entering the program, participants will

undergo frequent, unannounced drug testing

− 4 to 6 times per month for first month

For offenders testing negative, frequency of

testing will gradually be reduced

What happens once an offender is in the program?

9Key Components of Pilot Project

Upon detection of a violation, the probation

officer shall immediately issue a PB-15,

authorizing the offender’s arrest

Offender should be arrested by a police

officer or Sheriff’s deputy as quickly as

possible

What happens when a violation is detected?

10Key Components of Pilot Project

The court establishes an expedited process for dealing with violations

− Typically, one or two judges will oversee this program for the court

Ideally, expedited hearings are conducted multiple days of the week so that an offender does not wait in jail more than 48 to 72 hours before appearing (unless taken in on a Friday or holiday)

Judges determine how this should be achieved in terms of docketing

Example:

Monday, Wednesday, Fridays 1:00-1:30pm

How will violation hearings be conducted?

11Key Components of Pilot Project

Expedited hearings should be brief (7-8 minutes each)

Court must conduct an expedited hearing unless:

− It is alleged that the offender committed a new crime or infraction,

− It is alleged that the offender absconded for more than 7 days, or

− Offender, Commonwealth’s Attorney, or the court objects to the hearing

If so, the violation will be handled through the normal violation process

(per § 19.2-303.5)

When is an expedited hearing not conducted?

12Key Components of Pilot Project

A public defender (if an office exists in the site)

should be assigned to each session in which the

court will hold expedited hearings

If there is no public defender office in that locality,

a cadre of court-appointed attorneys should be

assigned to cover the expedited hearings

The offender can call a private attorney

Offender can waive counsel

What access will the defendant have to defense counsel?

13Key Components of Pilot Project

While the offender is participating in

the program, each violation results in

mandatory jail time

Show cause will be continued

Probation office will lift the PB-15

What are the consequences for violations?

14Key Components of Pilot Project

ProgramViolation

Mandatory Incarceration

1st violation 3-7 days

2nd violation 5-10 days

3rd violation 7-14 days

4th violation 10-20 days

5th violation 15-25 days

6th violation or subsequent

20-30 days

After repeated positive drug tests, the court may order a full substance abuse assessment

If addicted, the defendant may be referred to substance abuse treatment (if suitable) or drug court (if available)

The Commission’s probation violation guidelines,

which apply to technical violations,

will not be used for program participants

What about the current Probation Violation Guidelines?

15Key Components of Pilot Project

The court may remove the offender from the

program at any time and, at the court’s

discretion, revoke probation

Offender will be removed from the program if

convicted of a new criminal offense

If an offender has gone 12 months since his/her

last violation, offender should be considered as

having “successfully completed” the program

How can an offender be removed from the program?

16Key Components of Pilot Project

Activities to Date

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2012

May

June

July

August

September

General Assembly adopted budget language directing the Commission to implement the Immediate Sanction Probation pilot project

Secretary of Public Safety discussed the legislative directive with Commission members and communicated the Governor’s support for the program

Staff developed proposals for the program’s design and identified potential pilot sites

Commission approved program’s design and potential pilot sites

Staff began drafting manual, warning script, forms, etc.

DOC confirmed resources for one probation officer for each site

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Meeting with stakeholders in Henrico – agreed to participateMeeting with stakeholders in Newport News – declinedMeeting with stakeholders in Lynchburg – agreed to participate

Henrico planning meeting

Meeting with stakeholders in Hampton – declined

Henrico program began

Site meetings: Henrico (2)

Staff provided draft manual to DOC for comment

2012

October

November

December

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Lynchburg planning meeting

Lynchburg program began

Meeting at DOC headquarters with Deputy Director, regional administrators, probation chiefs, and immediate sanction probation officers

Site meetings: Lynchburg (1), Henrico (2)

2013

January

February

March

April

Meeting with stakeholders in Chesapeake

Site meetings: Lynchburg (1)

Planned: Meeting at DOC headquarters, site meeting in Henrico

Planned: Second meeting with stakeholders in Chesapeake

Implementation manual, warning script, and forms

− Provided to DOC for comment

• Comments incorporated

− Updates made as needed

Template court orders

− Placement in the program

− Program violations

Payment process for court-appointed attorneys

working with the program in Henrico

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Other Tasks

Codes to identify and track program participants

− DOC’s VA-CORIS system

− Local Inmate Data System used in the jails

Codes for tracking court hearings

− Supreme Court’s Case Management System

(CMS) used by clerks

Point-of-contact for each office/agency identified

and contact lists created for each pilot site

− To facilitate swift communication process

22

Other Tasks

23

Status in Henrico

Start date: November 1, 2012

Two judges have been designated to oversee the

caseload and the hearings

− Judge Yoffy and Judge Wallerstein

DOC has designated a probation officer to supervise

the offenders in the program

Judge Wallerstein contacted several court-appointed

attorneys who agreed to provide defense counsel to

offenders in the program

− These attorneys were briefed on November 6

24

Status in Henrico

Sheriff and Chief of Police agreed to arrest

program violators quickly

− The two offices are coordinating to work

out ways to divide the additional duties

Judges conduct expedited hearings on

Monday, Wednesday, and Friday at 1:00pm

Program Participants (as of March 14)

5

Program Violations (as of March 14)

1

25

Status in Lynchburg

Start date: January 1, 2013

One judge is overseeing the caseload and hearings

− Judge Yeatts

− Backup will be a substitute judge

DOC designated a probation officer to supervise the offenders in the program

− Officer originally assigned was promoted

− Another probation officer has recently been assigned to the program

The Public Defender is working with the program

26

Status in Lynchburg

Originally held as needed, Lynchburg has now

set expedited hearings for Monday,

Wednesday, and Friday at 1:00pm

Amherst and Campbell County Sheriffs have

agreed to execute Lynchburg PB-15s quickly,

thereby expanding the pool of potential program

participants to those living outside the city

Program Participants (as of March 14)

6

Program Violations (as of March 14)

5

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Program-Related Issues

Number of eligible offenders appears to be less

than expected

− Offenders being supervised in the pilot

site who are under the jurisdiction of

another court are not eligible

− Offenders with current or prior violent

felonies are not eligible

Probationers are not being referred to the

Immediate Sanction Probation Officer to be

considered for the program at the rate that

was anticipated

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Program-Related Issues

Some PB-15s have not been executed as quickly

as desired

− This has resulted in delays in getting

offenders in front of the judge to be

considered for placement in the program

− More importantly, participants who violate

must be arrested as quickly as possible so

that sanctions can be imposed swiftly

Commission staff will continue to work with the

pilot programs to address eligibility concerns and

facilitate the referral of potential candidates to the

Immediate Sanction Probation Officer

− Meeting at DOC headquarters on March 29

Commission staff will continue to work with the

pilot sites on an approach to facilitate the expedited

service of PB-15s and Show Cause orders

 

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Action Plan