Probable Cause Process 106-ICAOS Training Probable Cause Process Rule 5.108 [Revision 12/1/2017-Includes Rules Effective 3/1/2018] Be Ready for a Test at the End.

11/15/2018 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 Creates Record 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 5.102 covers mandatory retake for felony conviction and violent crime convictions New Rule 5.101-2 is not referencing a PC hearing, but rather a violation hearing for the new conviction. Allows for a discretionary process (based on the sending state’s capabilities) to address a violation of a new conviction and allow a new sentence imposed by the sending state to be satisfied or partially satisfied while incarcerated

When a Compact Offender is Entitled to a PC Hearing Custodial detention based on violations initiated by either the receiving or sending state sanctioning or preliminary-justify detention 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 (Notification (via Progress Report) at the time condition is imposed!) Absconder apprehended in the receiving state The offender is in custodial detention in the receiving state based on violations of supervision that occurred in that state or based on a request from the sending state that the offender be detained OR A PC hearing is not required when there is a new criminal conviction, the judgment of conviction is conclusive Authority to Arrest and Detain Rule 4.109-1 Warrant from Sending State Authority to arrest and detain An offender in violation of the terms and conditions of supervision may be taken into custody or continued in custody by the receiving state. (Only if you have the authority to arrest in-state offenders without a warrant from the Court.) Can occur under three broad categories Committing a new offense in the receiving state Upon request of sending state based on its intent to retake. Violations that physically occur in the receiving state. (May or may not be a new charge. Sending state may or may not initiate retaking.) Fulfills critical purpose of public safety and protecting rights of crime victims. The sending state does not have to issue a warrant when a request for probable cause is made Some states have the ability to issue warrants on offenders from other states It is up to the sending receiving state to get the offender into custody if that is required for the PC hearing. Rule 4.109-1 OR The alleged violations of supervision in the receiving state may form the basis of revocation of supervised release by the sending state and geographical distance may prevent the offender from adequately presenting a defense including calling witnesses or presenting exculpatory evidence The inquiry is more depth and is in the nature of a probable cause, fact finding proceeding. When there is a risk of revocation a PC hearing shall be conducted. Since the receiving state does not know what the sending state may do once the offender is returned, the process usually starts with a request from the sending state. Sending states should not be asking for a pc hearing if they have no intention of revoking. Some states such as Minnesota may have their own PC requirements in Statute. For example, if MN takes an interstate offender into custody on a MN warrant a PC hearing has to be conducted within 12 days. Make sure you know the laws in your state. Third reason OR If an offender who has absconded is apprehended on a sending state’s warrant within the jurisdiction of the receiving state If an offender who has absconded is apprehended on a sending state’s warrant within the jurisdiction of the receiving state that issued the violation report and case closure, the receiving state shall, upon request by the sending state, conduct a probable cause hearing as provided in Rule 5.108 (d) and (e) unless waived as provided in Rule 5.108 (b).

Preliminary Hearing vs PC Hearing 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?? This is where many states vary. For some the preliminary hearing is as detailed to meet requirements of Rule 5.108, but not always.

PC Hearing & Retaking 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 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 In place of a probable cause hearing a receiving state can offer the offender a PC waiver. The PC waiver needs to include an admission to at least one violation of conditions 15

Uploading Hearing Report or Waiver Establishing Probable Cause per Rule 5.108 when reporting the violation may speed up the retaking process! PC documentation can be updated/added, via Addendum to Violation Report too! Do not use CARs to update…note to supervisors, ensure this documentation is reviewed! Ensure Hearing Reports meet requirements of Rule 5.108

If Probable Cause is established, After the PC Hearing… If Probable Cause is established, Receiving State Sending State SHALL hold the offender in custody If not in custody, the offender is taken into custody at this time Notify the receiving state of the decision to retake within 15 business days of receipt of the report 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, Receiving State Sending 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 Vacate the sending state’s warrant After the PC Hearing…

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.

11/15/2018 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 The receiving state submitted a violation report for conviction of a offense which included a copy of the court order. The sending state requests a probable cause hearing. Under the rules of the compact the receiving state is not required to conduct the probable cause hearing for this case. True False True; Rule states that judgment of conviction for new offense shall be deemed conclusive proof and retaking can occur without the need for further proceedings

Scenario #2 Anyone in the receiving state can conduct a probable cause hearing, including the supervising agent. True False False; Rule requires the person be neutral and detached

Scenario #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. True False False, Rule 5.108 specifically states waivers must include an admission to at least one violation of a condition

Scenario #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. True False False, Rule 5.108 e states the report must include time, date, location of the hearing, parties present, evidence presented and a summary of testimony.

Scenario #5 The sending state should be notified via Progress Report anytime a new condition is imposed on the offender. True False True, Rule 4.103 requires notice take place of any conditions imposed.

Questions