Probation is an alternative to imprisonment for low-risk offenders that allows them to serve out their sentences out of jail under probationary supervision. The rules of probation can be complicated and difficult to comply with, and if an offender misses an appointment or commits a minor technical violation of probation, they could end up facing the maximum prison term for their original offense.
What Happens if the Terms of Probation are Violated?
While on probation or supervised release, the offender may not commit another federal, state, or local crime, must be prohibited from possessing a firearm or other dangerous device, may not possess an illegal controlled substance and must comply with the other standard conditions that have been adopted by the Court for the purposes of the probation release. Additionally, the offender must submit to one drug test within 15 days of the probation commencement and at least two tests thereafter as determined by the probation officer appointed to the offender. If the offender violates any of these conditions, they will undergo a violation of probation hearing.
During a violation of probation hearing, the probation officer usually makes a recommendation to the judge regarding the punishment for violating probation, but the judge will also weigh other factors such as the offender's previous criminal history, the severity of the underlying criminal charges, and whether the violation justifies revoking probation.
In New Jersey, there's no right to a trial by jury when undergoing a violation of probation hearing, however, the offender does have a right to counsel. At the hearing, the violation does not need to be proven beyond a reasonable doubt, but only by clear and convincing evidence. The decision as to whether to revoke the offender's probation privileges usually comes down to the offender's account against the probation officer's account, and it can be difficult to convince a judge that the offender is more credible than the probation officer.
What is Parole?
Parole is a conditional release from prison available to certain inmates after they have served a portion of their sentences. Parole is often issued when the inmate has served their time with good behavior. Since the offender is still serving their sentence on parole there are general parole conditions that they must follow. These general parole conditions are printed on a parole certificate and apply to every parolee. When an offender is paroled, they must sign the parole certificate which serves as a promise to comply with the conditions of parole. A parole officer will be assigned to the offender and their job is to help the offender and make sure that the conditions are followed. In addition to the generic conditions, certain offender's may also be required to comply with additional special conditions. Possible conditions include; regular appointments with a probation or parole officer, monthly payments, curfews, random drug and alcohol testing, electronic monitoring, education and employment requirements, community service, or counseling.
The State Parole Board panels decide who should be released on parole. The Board panels also set the conditions to be obeyed on parole and decide what action to take if parolees violate conditions of parole. Currently, the State Parole Board has a Chairperson, 14 Associate Members and three (3) Alternate Members appointed by the Governor and approved by the Senate. There are six (6) panels of two (2) members who are assigned to adult and young adult cases and a panel of two (2) members who are assigned to juvenile cases. The Chairperson serves as a third member of each of the panels.
Before an offender's parole hearing, a parole counselor will ask the offender where they want to live and what they plan to do when they are released. A district parole office will investigate the plan and advise the Board panel whether the plan is acceptable. The Board panel can reject a parole plan that is not in the offender's best interest. The Board panel wants to make sure that the offender has an acceptable place to live, a plan to get a job or go to school, and if possible the support of family members or a friend. The purpose of the parole plan is to give the offender a good chance of re-entering society without returning to crime. If the offender is ultimately paroled and does not have a place to live, the district parole office will try to arrange a placement. Another option may be referral to a residential program or some other kind of assistance.
What Happens if the Terms of Parole are Violated?
A violation of parole terms could lead to a revocation of parole, the imposition of stricter conditions, and possibly jail time. If an offender's parole officer has probable cause to believe that a violation of parole has occurred and if the evidence indicates that the offender might flee the authorities or that they pose a danger to public safety, a parole detainer can be issued authorizing the offender's detention until a parole revocation hearing can be had.
Unless a request is received from the Prosecutor or the Director of the Division of Parole to start the revocation hearing process, the Board cannot revoke an offender's parole before the pending criminal charges are disposed of in court. If a request is received, a Board panel will decide if a warrant will be issued to detain the offender and whether they will receive a revocation hearing before disposition of the pending criminal charges. If it is determined that a revocation hearing should be conducted, a warrant will be issued for the offender's arrest. Upon their arrest, they will have a probable cause hearing. If probable cause is found, the offender will have a revocation hearing.
At a parole revocation hearing, the offender does not have a right to a jury trial and the violation does not need to be proven beyond a reasonable doubt. As with a violation of probation hearing, the offender has the right to be represented by counsel during the hearing. However, parole violation proceedings are more strict than probation violation hearings and parole officers have less influence regarding revocation decisions, even if the offender is only charged with a minor or technical violation of parole. Instead of convincing the parole officer not to make a recommendation of parole revocation to the judge, the offender's counsel must disprove the violation and demonstrate that any violation the offender may have committed was not serious enough to warrant the revocation of parole. If the offender's counsel is unsuccessful and parole is revoked, the offender will be ordered to return to prison to serve out the rest of their sentence. In some circumstances, the judge may choose to impose less severe penalties, such as additional parole conditions and stricter supervision requirements.