Where the retaking of an offender may result in revocation of conditional release by the sending state, the offender is entitled to the basic due process considerations that are the foundation of the Supreme Court’s decisions in Morrissey and Gagnon, and the rules of the Commission. Rule 5.108(a) provides, in part, that:
An offender subject to retaking that may result in revocation shall be afforded the opportunity for a probable cause hearing before a neutral and detached hearing officer in or reasonably near the place where the alleged violation occurred. (Emphasis added)
Second, an offender must be afforded a probable cause hearing where retaking is for other than the commission of a new criminal offense and revocation of conditional release by the sending state is likely. The purpose of the hearing is twofold: (1) to test the sufficiency and evidence of the alleged violations, and (2) to make a record for the sending state to use in subsequent revocation proceedings. One of the immediate concerns in Gagnon and Morrissey was geographical proximity to the location of the offender’s alleged violations of supervision. Presumably, hearings on violations that occurred in a receiving state that was geographically proximate to the sending state could be handled in the sending state if witnesses and evidence were readily available to the offender. See Fisher v. Crist, 594 P.2d 1140 (Mont. 1979); State v. Maglio, 459 A.2d 1209 (N.J. Super. Ct. 1979) (when the sentencing state is a great distance from the supervising state, an offender can request a hearing to determine if a prima facie case of probation violation has been made out; hearing will save defendant the inconvenience of returning to that state if there is absolutely no merit to the claim that a violation of probation occurred). Consistent with Gagnon and Morrissey, Rule 5.108 (a) provides that an offender shall be afforded the opportunity for a probable cause hearing before a neutral and detached hearing officer in or reasonably near the place where the alleged violation occurred. While a judge is not required to preside at such hearings, care should be taken to conduct these proceedings in a fair manner consistent with the due process requirements set forth in these U.S. Supreme Court cases. An offender’s due process rights are violated where a witness against an offender is allowed to testify via another person without proper identification, verification, and confrontation, e.g., with a complete lack of demonstrating good cause for not calling the real witness. See State v. Phillips, 126 P.3d 546 (N.M. 2005).
PRACTICE NOTE: If there is any question regarding the intent of the sending state to revoke an offender’s conditional release based on violations in the receiving state, the offender should be given a probable cause hearing in accordance with Rule 5.108. This ensures a proper record is developed and that the offender’s due process rights have been protected. Failure to do so may act to bar consideration of those violations in subsequent revocation proceedings in the sending state.
Click terms below to reveal definitions used in this rule.
Probable Cause Hearing – a hearing in compliance with the decisions of the U.S. Supreme Court, conducted on behalf of an offender accused of violating the terms or conditions of the offender‘s parole or probation.
Retaking – means the act of a sending state in physically removing an offender, or causing to have an offender removed, from a receiving state.