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Interstate Commission for Adult Offender Supervision | Ensuring Public Safety for the 21st Century

Bench Book - 4.7.3.2.2 Probable Cause Hearing Report

Rule 5.108(e) requires the receiving state to prepare a written report of the hearing within 10 business days and to transmit the report along with any evidence or record from the hearing to the sending state. The report must contain (1) the time, date and location of the hearing, (2) the parties present at the hearing, and (3) a concise summary of the testimony and evidence relied upon. Under Rule 5.108(e), even if the probable cause hearing results in exoneration of the offender, the receiving state must transmit a report to the sending state.

PRACTICE NOTE: Rule 5.108 requires the receiving state to prepare and transmit a report on the probable cause hearing to the sending state, despite any findings that the offender did not commit the alleged violations of supervision.

It is important that Rule 5.108 be read in conjunction with other rules regarding retaking and conditions, since this may affect the outcome of the proceedings and the impact of subsequent proceedings in the sending state. At the conclusion of a hearing, the presiding official must determine whether probable cause exists, believing that the offender committed the alleged violations of the conditions of their supervision. However, a determination made in a proceeding for mandatory retaking must be made in view of Rule 5.103(a). This rule provides, in part, that officials in the receiving state must show through documentation that the offender has engaged in behavior requiring retaking. See Rule 5.103(a). To support the receiving state’s request for mandatory retaking, as well as to provide a basis for subsequent proceedings in the sending state, which could result in revocation, the hearing officer in the receiving state should determine whether sufficient cause exists to conclude that the act or pattern of non-compliant behavior committed by the offender is appropriately documented and deemed revocable. Behavior requiring retaking means “an act or pattern of non-compliance with conditions of supervision that could not be successfully addressed through the use of documented corrective action or graduated responses and would result in a request for revocation of supervision in the receiving state.” See Rule 1.101.

If a hearing occurs based on violations of a condition imposed by the receiving or sending state, two considerations arise. First, the hearing officer must determine whether the offender violated the conditions of supervision, e.g., the offender indeed failed to comply with a condition. If the hearing officer so concludes, a second determination may need to be made. If the sending state notifies the receiving state of its intention to revoke probation or parole based upon the violation of a condition and requests a hearing, or if the receiving state intends to provide the sending state with a sufficient basis for revocation and voluntarily conducts such a hearing. Under Gagnon and Morrissey, the hearing officer must determine whether the violation is of sufficient nature that it would typically result in revocation in the receiving state. A hearing officer could conceivably find that the violation occurred, but that retaking is not warranted because it would not rise to the level of revocation in the receiving state. Two important points must be emphasized. First, the determination of “likelihood of revocation” would not be conclusively binding on the sending state, as only the state granting conditional release has jurisdiction to make a final determination on revocation. See Scott v. Virginia, 676 S.E.2d 343, 347 (Va. App. 2009); Bills v. Shulsen, 700 P.2d 317 (Utah 1985); State ex rel. Reddin v. Meekma, 306 N.W.2d 664 (Wis. 1981). There is, nevertheless, a potential for conflicting conclusions between officials in the sending and receiving states regarding the severity of a violation and its implication.

Second, despite the fact that the determination of “likelihood of revocation” is based on the receiving state’s standards, a sending state could conceivably obviate the need for a probable cause hearing by asserting that it has no intention of revoking the offender’s conditional release. Such an assertion by the sending state would prevent it from using the violation as a predicate for revocation, notwithstanding the jurisdiction to do so. This reading of Rule 5.108(a) is consistent with the general principles of Gagnon and Morrissey. The purpose of the probable cause hearing in the receiving state is not to test the sufficiency of a sending state’s decision to retake, but to determine the merits of alleged violations that occurred in the receiving state and to secure a record for subsequent proceedings in the sending state. Under the due process principles articulated in Gagnon and Morrissey, an assertion by the sending state that it has no intention to revoke conditional release (thus negating the need for a probable cause hearing in the receiving state) would act to bar consideration of the violations in any subsequent revocation proceedings. Any other reading would allow a sending state to by-pass the minimum due process requirements established in Gagnon, Morrissey and Rule 5.108 simply by affirming it has no intention to revoke and then subsequently not honor that position. See e.g., Fisher v. Crist, 594 P.2d 1140 (Mont. 1979) (a writ of habeas corpus will be granted when revocation of parole is based on violations that occurred in the receiving state and offender was not granted an on-site probable cause hearing prior to retaking; waiver of hearing will not be inferred by offender’s failure to demand hearing).

PRACTICE NOTE: Under Gagnon and Morrissey, offenders have the right not to have their liberty interests – however limited – revoked arbitrarily. State officials must establish grounds for revocation. Therefore, if violations occurring in a state other than the sending state will form the basis of revocation, the offender is entitled to a more robust due process hearing which may be very similar to the revocation proceeding itself.

References

Definitions

Click terms below to reveal definitions used in this rule.

Behavior Requiring Retaking – means an act or pattern of non-compliance with conditions of supervision that could not be successfully addressed through the use of documented corrective action or graduated responses and would result in a request for revocation of supervision in the receiving state.

Retaking – means the act of a sending state in physically removing an offender, or causing to have an offender removed, from a receiving state.

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.