News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Massachusetts Reforms to Probation Violation Proceedings Take Effect in September 2015

On September 8, 2015, Massachusetts district courts and the Boston Municipal Court will implement significant changes to probation violation rules.  Individuals who are currently under a term of probation issued in a criminal case after a finding of guilty or after a continuance without a finding (“CWOF”) should take notice of these new rules.  The new rules do not apply to individuals who are under pretrial probation.  The rule changes will have a direct impact on the way that probationers and their criminal defense counsel handle these cases going forward.  We are outlining these changes in two posts.  This post focuses on how the new rules will operate to clarify record-keeping and help the courts make reasonable determinations about detention and transport between courts when a defendant is charged with violating probation by committing a new crime.  For part 2 in this series, click here.

Defendants may be brought before the court accused of violating probation either because they have been arrested and accused of committing new crimes (an arrest is an automatic probation violation) or because they have violated conditions of probation but not any laws.  (For example, a common condition for defendants on probation for DUI is the requirement to abstain from alcohol.) Whether the basis for the probation violation is a new criminal charge or non-criminal conduct, the rules now specify that the notice of violation may be withdrawn prior to adjudication (thereby terminating the proceeding) only with court approval.  Such approval and the fact of withdrawal must be recorded on the docket.  Previously, a notice of violation could be withdrawn solely with the discretion of the Probation Department without any court approval, which could lead to confusion and lack of record-keeping regarding the process by which the probation proceeding had been terminated.

Second, the new rules streamline and clarify procedures involving the situation in which an individual is charged with a crime in a different court from the court that placed him on probation.  Changes in the new rules are likely to affect how often a defendant is transported in custody from the court where the new charge is pending (the “criminal court”) to the court that placed him on probation (the “probation court”) for the initial hearing on his probation violation.  A defendant who is transferred in custody will be transported, probably in handcuffs, possibly with other prisoners, right away, while a defendant who is not transferred in custody will simply be given a date and time when he or she is required to appear in the probation court—a big difference in practice for defendants and for their families.  In this situation, if both courts are in the same court division, the probation department in the criminal court where the new charge is pending is required to electronically send the chief probation officer in the probation court the following documents:  the notice of violation, the criminal complaint and police report on new criminal charge that constitutes alleged probation violation, and a request for whether the probation court recommends that the probationer be transported in custody and, if not, the date and time for the non-custodial appearance of probationer.  The probation court must respond to this request within one business day.

In contrast to the prior rule, the judge in the criminal court, not the probation court, decides whether the probationer is to be transported in custody to the probation court.  The probationer is allowed the opportunity to be heard.  Unless there are exceptional circumstances, the criminal court judge must wait one hour for receipt of the probation court’s recommendation before making its decision (though it is unclear from the rule from when the one hour is counted).  However, the judge is not bound by the probation court’s recommendation in any event.  If custodial transport is ordered, the criminal court shall issue a probation warrant on behalf of the probation court and the probationer shall be promptly transferred.  If the criminal court does not order custodial transport, then it shall enter the probation court appearance date on the notice of violation and serve it on the probationer, who will be responsible for appearing on that date in the probation court.

A criminal court may also hold a probationer in custody for good cause shown pending a decision on transport.  This is important to know because if the probationer is released on bail in the criminal case, he may not be free to leave and could still be remanded to custody for transport to the probation court.  Where the criminal court and the probation court are the same, a probationer may end being remanded based on the probation violation even if the court grants bail on the criminal case.     The change in the transport rule may end up accelerating transport decisions because, previously, probation courts were unfamiliar with the underlying facts of the new criminal case and taking time to render transport decisions.  Ideally the new rule will succeed both in streamlining decision-making about transport—reducing the time defendants spend in custody while those decisions are made—and in giving defendants more of a voice in the decision.

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