Adult Violation of Probation (VOP) Guidelines and Procedure NJ

Adult Violation of Probation (VOP) Guidelines and Procedure

See Probation Adult Violation of Probation (VOP) Guidelines and Procedures ADMINISTRATIVE OFFICE OF THE COURTS STATE OF NEW JERSEY PHILIP S. CARCHMAN, P.J.A.D. RICHARD J. HUGHES JUSTICE COMPLEX ACTING ADMINISTRATIVE DIRECTOR OF THE COURTS P.O. Box 037 TRENTON, NEW JERSEY 08625-0037 TO: Assignment Judges Trial Court Administrators FROM: Philip S. Carchman, P.J.A.D. SUBJECT: Probation Adult Violation of Probation (VOP) Guidelines and Procedures DATE: April 7, 2008 This Directive promulgates for immediate use revised Adult Violation of Probation Guidelines and Procedures, as approved by Judicial Council on February 27, 2008. These revised guidelines and procedures, which supersede the 1999 Violation of Probation and Revocation Process policy, were necessitated by a number of statutory and policy changes as detailed below. These revised VOP Guidelines and Procedures contain the following significant changes from the 1999 policy: 1. Addition of language describing the circumstances under which a VOP should be filed when a probationer has been charged with a 3rd or 4th degree crime (page 4, Guideline #1B); 2. Clarification regarding the response to a positive drug test, specifically, to indicate that there must be a response, while at the same time recognizing that there must be flexibility to account for the probationers particular circumstances (page 8, Condition #8); 3. Clarification that failure to surrender either a permit to purchase a handgun or a firearms purchaser identification card constitutes a violation of probation (page 9, Condition #11); 4. New guidelines for refusal to submit to DNA testing, a statutory condition of probation that was not in effect at the time the 1999 VOP policy was adopted (page 10, Condition #13); 5. Addition of language to address the Supreme Courts determination in State v. Nellom, 178 N.J. 192 (2003) of what constitutes commencement of a VOP for purposes of tolling a probation term (pages 13, Procedure #7); 6. Stating clearly that it is the prosecutors obligation to prosecute VOP matters, as described in Directive #04-06, and that appropriate notifications now include a new standard memorandum to the prosecutor (pages 13, Procedure #7); 7. Addition of procedure and form to reflect that probationers are subject to the Interstate Compact for Adult Offender Supervision (page 15-16, Procedure #15); 8. Addition of language regarding prior service credit added to the jail credit guidelines (page 18); 9. Addition of guidelines, along with a form, regarding the probationers obligation to inform the court about the need for alternative care for any dependents if the probationer is to be incarcerated (page 20). The revised Adult Violation of Probation Guidelines and Procedures will be posted on the Infonet and will be incorporated into the Probation Supervision Manual as Section 5300. The forms appended to the guidelines also will be available through the Judiciary InfoNets Forms ClearingHouse and Repository. Questions regarding this Directive and the underlying policy may be directed to Robert Sebastian, Assistant Director, Probation Services Division, at 609-292-1589. As Approved by the Judicial Council Table of Contents I. Introduction......................................................................................................... 1 II. Guidelines for Filing Violations of Standard and Special Conditions of Adult Probation .............................................................................................. 3 III. Procedures for Filing Adult Violations of Probation ..................................... 11 IV. Guidelines for the Authorization to Arrest and Detain a Probationer for a Violation of Probation.............................................................................. 17 V. Jail Credit Guidelines....................................................................................... 18 VI. Guidelines on Providing Information to the Court on Alternatecare Needs................................................................................................................. 20 FORMS: Violation of Probation Statement of Charges (CN 10076) Violation of Probation Sample Charging Language (CN 10076) Violation of Probation Summary (CN 10077) Violation of Probation Addendum (CN 10214) Violation of Probation Hearing Summons (CN 10075) Memorandum to the Prosecutor (CN 11201) Authorization to Arrest and Detain (CN 11200) Alternate Care Addendum (CN 11203) ICAOS Offender Violation Report (CN 11206) Directive #7-08 Adult Violation of Probation Guidelines and Procedures Section I. Introduction 1 I. INTRODUCTION Purpose Supervision strategies should be consistent with the purposes of the New Jersey Statue as articulated in N.J.S.A. 2C:45-1 (a), which states: When the court suspends the imposition of sentence on a person who has been convicted of an offense or sentences him to be placed on probation, it shall attach such reasonable conditions, authorized by this section, as it deems necessary to insure that he will lead a law-abiding life or is likely to assist him to do so. These conditions may be set forth in a set of standardized conditions promulgated by the county probation department and approved by the court. The following guidelines and procedures for filing violations of probation (VOPs) reflect current practices and supersede the prior standards approved by Judicial Council on September 30, 1999. These guidelines and procedures standardize adult supervision practices and ensure that conditions of probation are enforced fairly and consistently throughout the state. Ensuring compliance with the court order is the core function of Probation, and the activities of Probation monitoring, enforcing and intervening are designed to meet that mandate. Progressive Sanction Strategy Probation officers utilize various intervention strategies to deal effectively with probationer non-compliance. Intervention strategies should be progressive, beginning with the least restrictive measure deemed appropriate, followed by more consequential measures if non-compliance continues. In determining the appropriate intervention sanction, an objective appraisal must be made of each probationers background, risk, and needs, the circumstances of the noncompliant behavior and the probationers adjustment while on probation. Filing a VOP Upon Continued Non-Compliance If the probationer fails to comply with the terms of the sentence or the standard or special conditions of probation despite the probation officers efforts to secure compliance through progressive intervention strategies, the matter must be placed before the court for judicial determination. A violation of probation (VOP) is the vehicle by which the probation officer brings the probationer before the court for non-compliance. The commencement of a VOP puts both the court and the probationer on notice that the probationer is on track for revocation. In the VOP Statement of Charges and the VOP Summary the probation officer documents the probationers response to supervision, describing the probationers overall adjustment, documenting those conditions which the probationer is alleged to have violated and new arrests if they have occurred. Prosecutors are responsible for the prosecution of defendants charged with violating terms of their probation. The probation officer serves as a witness presenting documentation of the violation(s), describing efforts made to assist the probationer in complying with the terms and conditions of probation, and making recommendations regarding revocation and resentence. To ensure a consistent approach throughout the state toward non-complaint behavior, the guidelines and procedures outlined here must be followed except for exceptional circumstances. The probation supervisor must be consulted regarding all non-compliant probationer behavior. Any deviation from policy in not bringing VOP charges will require an approval by the supervisor, documented by a chronological entry describing the reasons for the exception. Timeliness of response is an essential element of good probation practice. The time frame of non-compliant behavior is to be included in the decision making process for the probation officer and supervisor. Timeliness Essential All probationer non-compliant behavior should be addressed, investigated and resolved no later than thirty days after detection. Non-compliance of a severe nature should be acted upon no later than ten working days after detection. Directive #7-08 Adult Violation of Probation Guidelines and Procedures Section II. Guidelines for Filing a VOP 3 II. GUIDELINES FOR FILING VIOLATIONS OF STANDARD AND SPECIAL CONDITIONS OF ADULT PROBATION The goal of probation supervision is to selectively and actively intervene with probationers so as to reduce the likelihood of future criminal activity and promote compliance with the supervision strategy. This policy is designed to provide timely, consistent and equitable responses to probationer non-compliance with the courts order. It establishes uniform statewide guidelines and procedures to file violations of probation (VOP). It is not, however, intended to limit the discretion of the probation officer to file a violation of probation at any time in the supervision process. The statement in bold at the beginning of each numbered paragraph below sets forth one of the Standard Conditions of Adult Probation approved by the Supreme Court. The statement is followed by factors to be considered in responding to a violation of each condition. 1. You shall obey all federal, state and municipal laws and ordinances. You shall notify your probation officer if you are arrested or issued a summons in any jurisdiction. A new arrest may constitute or may reveal conduct that constitutes a violation of probation (VOP). Pursuant to State v. Wilkins 230 N.J. Super. 261 (App. Div.1989), a person can be found to have violated probation by engaging in a new offense before, or even in the absence of, a conviction for the new crime. For this to occur, it would be necessary for the probation officer to demonstrate at the VOP hearing that there is evidence of criminal conduct by the probationer. When a probation officer becomes aware that a probationer has been arrested or that a summons has been issued to the probationer, the officer must take action with the supervisors approval. The response should be timely and proportionate to the severity of the violation and to the probationers risk to the community. Consideration should also be given to the probationers responsiveness to supervision. A. Arrest for violent crime or other first or second degree crime in New Jersey or equivalent charge from another state: The probation officer must prepare and file a VOP (see Section III. Procedures for Filing Adult Violations of Probation) as soon as possible, but in any event no later than five working days after the officer is advised of a first or second degree crime in New Jersey or equivalent charge from another state. Documentation of the new charge should be attached to the VOP. Directive #7-08 Adult Violation of Probation Guidelines and Procedures Section II. Guidelines for Filing a VOP 4 B. Arrest for a third or fourth degree crime: In most cases, the probation officer should prepare and file a VOP if a probationer is arrested for a third or fourth degree crime. There may, however, be exceptions to this general rule. If, for example, the probationer has progressed well and the arrest is for an unrelated offense, the need to file a VOP is less than if the crime constitutes a repetition of the original offense. If the new arrest appears to be related to the offenders drug addiction, a VOP may be filed and the probation officer may include in the Recommendations section of the VOP Summary (Form: CN 10077) a recommendation that the court consider resentencing the probationer to Drug Court. If the probationer is complying with his/her case plan, it may be appropriate to allow the new offense to be remedied through the new criminal proceeding rather than through further efforts by probation based on the original offense. Thus, the probation officer must consider the nature and circumstances of the new offense in the context of the probationers case plan and its impact on the possibility of the probationers rehabilitation. Any instructions that a judge has given with respect to violations of probation when imposing sentence in a particular case must, of course, be taken into account. The probation officer must always file a VOP when the probationer is arrested for a third or fourth degree crime within 90 days prior to the expiration of the term of supervision. Filing the VOP tolls the probation term, and ensures that appropriate action can be taken before the probation term expires. C. Arrest for disorderly persons (DP) offense, petty disorderly persons offense, a motor vehicle violation or municipal ordinance violation: The probation officer may prepare and file a VOP if a probationer is arrested for a DP offense, petty disorderly persons offense, a motor vehicle violation or municipal ordinance violation, depending on the circumstances. The probation officer must consider the nature of the violation, especially DWI or driving without a license or insurance, as well as the probationers history and responsiveness to supervision. The probation officer should not send a notice of the new arrest of a probationer on a DP or lesser offense as a routine practice. However, the new arrest reports may be submitted to the court depending on the instructions of the sentencing judge in the specific case. The probation officer should consult with the supervisor before filing a VOP. Directive #7-08 Adult Violation of Probation Guidelines and Procedures Section II. Guidelines for Filing a VOP 5 D. If a determination is made to file a VOP because of a new arrest, the probation officer shall request the Superior Court to issue a warrant or a summons to appear before prior to the expiration of the term of supervision. All VOPs require that a probationer be provided with notice by the issuance of a summons or warrant or an arrest in order to suspend or toll the term of probation until disposition of the VOP (see Section III. Procedures for Filing Adult Violations of Probations, #7 - Filing of the VOP for a discussion of tolling.). A warrant can be issued on a VOP when a probationer has been arrested for and charged with a new offense, but has not yet been convicted. If after consultation with the supervisor, it is determined to be necessary to place the probationer in custody prior to the VOP hearing, the judge may issue a bench warrant or the Chief Probation Officer may sign an Authorization to Arrest and Detain. (see Section IV. below, Guidelines for the Authorization to Arrest and Detain.) E. The probation officer must prepare and file a VOP Statement of Charges, (Form: CN 10076) within 24 hours on persons who are placed in custody as the result of a bench warrant or an Authorization to Arrest and Detain (Form: CN 11200). When a bail investigation is conducted on the new charge, the probation officer will provide information regarding the VOP to the Criminal Division upon request. The court will determine if it wishes to proceed with the VOP or await adjudication of the new charge. 2. You shall report to your probation officer as directed. The probation officer shall prepare and file a VOP when, without good and sufficient reason, a probationer misses three consecutive reports or establishes a pattern of failure to report for more than 60 days. The probation officer must consider the totality of the compliance and consult with the supervisor to assess the reasons for the failure to report before filing the VOP. Probationers are required to report to their probation officer based upon contact standards as defined in the Probation Supervision Manual. (Section 2100, Intake D 20, and Section 2400, Case Supervision G.4) Failure to report has been upheld in case law as a violation of probation. The probation officer should make progressive and diligent efforts to establish contact with the probationer whenever possible in order to bring the probationer into compliance. The probation officer should make a home contact as defined in Directive #14-06, Probation Field Supervision and Safety Standards, send a letter, and phone a responsible person for information before resorting to a VOP. Directive #7-08 Adult Violation of Probation Guidelines and Procedures Section II. Guidelines for Filing a VOP 6 3. You shall answer truthfully all inquiries made by your probation officer. The probation officer may prepare and file a VOP when the probation officer discovers that the probationer is not being truthful. This condition underlies good probationer performance. The probation officer must consider the context in which the failure to answer truthfully was discovered. The probation officer must adequately describe in the case file by chronological entries the behavior and all salient aspects of managing the behavior and be prepared to present that information to the court. Failing to tell the truth may constitute relatively minor non-compliant behavior which is atypical or incidental. This violation is most often incorporated with other violation charges and is usually considered in that context. Failing to tell the truth may rise to the level of a VOP when failure to answer truthfully is used to conceal other violations of the conditions of probation. 4. You shall permit your probation officer to visit your residence or any other suitable place. The probation officer shall prepare and file a VOP if the probationer is present and directly denies the probation officer access to his/her own residence, or other suitable place. 5. You shall submit at any time to a search conducted by a probation officer, without a warrant, of your person, place of residence, vehicle or other personal property. The probation officer may prepare and file a VOP if a probationer refuses to submit to a duly authorized search by a probation officer conducted in accordance with the requirements of Directive #14-06, Probation Field Supervision and Safety Standards. The probation officer should advise the probationer that a VOP will be filed and the case returned to court, if the probationer fails to cooperate. If the probationer still fails to submit to the search, the probation officer shall prepare and file a VOP. 6. You shall promptly report any change of address or residence to your probation officer. You must obtain permission from your probation officer if you wish to move outside the county or state. You may not leave the state of New Jersey for more than 24 hours without permission from your probation officer. Directive #7-08 Adult Violation of Probation Guidelines and Procedures Section II. Guidelines for Filing a VOP 7 Knowing where the probationer lives is critical to supervision activities, e.g., monitoring, sending notices, etc. Failure to report a change of address or residence should be considered as a VOP, particularly if a failure to report is involved. In order to bring the probationer into compliance, the probation officer should make a home contact, send a letter and phone a responsible person for information, as appropriate. In addition, postal traces may be utilized if there is reason to believe that the probationer is not residing at the address of record. The goal is to locate the probationer and secure compliance with the conditions of probation. The probation officer should consult with the supervisor to consider the background and overall adjustment of the probationer as well as the circumstances of the change of address. The probation officer shall file a VOP if these efforts produce no response and there appears to be an intentional action to avoid supervision. The probation officer must file a VOP within a week of knowing that a probationer has left the State of New Jersey without permission and fails to return. The probation officer may prepare and file a VOP if a probationer leaves New Jersey without the permission of the probation officer, and fails to return to New Jersey after 24 hours. The probation officer may revoke permission to live outside New Jersey. If the probationer continues to reside in another state after permission is withdrawn, the probation officer shall file a VOP within one week. 7. You shall cooperate in any medical and/or psychological examinations, tests and/or counseling your probation officer recommends. The probation officer may prepare and file a VOP if a probationer fails to enroll or cooperate with a recommended program of treatment. The probation officer should be able to demonstrate that any examination, test and/or counseling is justifiable based on the standard that it is reasonably related to the probationers rehabilitation or that it is needed because the probationer poses a danger to him self or herself or to the community. If the probation officer believes that an examination or evaluation is needed to determine if treatment or counseling is appropriate, the probation officer should direct the probationer to a provider. If a course of treatment or counseling is recommended, the probation officer should make the appropriate referral and direct the probationer to follow through within a reasonable timeframe. Directive #7-08 Adult Violation of Probation Guidelines and Procedures Section II. Guidelines for Filing a VOP 8 As set forth in the Model for Enhancing Probation Supervision: Outcome-Based Supervision Standards (2000), Standard 23, once an appropriate treatment program or service is identified, the probationer is expected to enroll and cooperate fully. The probation officer should maintain regular contact with the treatment provider to monitor the probationers status. Failure to enroll or failure to cooperate with the program of treatment should be the basis for a VOP. The probation officer should consult with the supervisor before filing a VOP. 8. You shall submit to drug or alcohol testing at any time, as directed by your probation officer. Many probationers are addicts when sentenced, and recovery from addiction is often characterized by alternating success and failure. The probation officer shall respond to any positive drug test. While any positive drug test may result in a VOP, this determination must be made on a case by case basis, preserving for both the probation officer and the judge the right to file or require a VOP at any instance of a failed drug test. Because addiction is a complex problem, however, the response to a positive drug test must be based on an assessment of each case on its own merits, with all options considered. Responses to a positive drug test, short of filing a VOP, may include a broad variety of sanctions including increased reporting, increased frequency of substance abuse testing, loss of a privilege, referral for a substance abuse evaluation, a behavioral contract, an adjustment conference or any of the other graduated sanctions that are among the strategies probation uses to assist probationers in achieving rehabilitation. If a VOP is filed, the probation officer may include in the Recommendation section of the VOP Summary (Form: CN 10077) a recommendation that the court consider resentencing the probationer to Drug Court. The probation officer should consult with the supervisor in determining when to file a VOP rather than resorting to a lesser alternative. If a probationer refuses to submit a sample or submit to a drug test, this is tantamount to an admission of drug use and is to be addressed in the same manner as a positive drug test. A probation officer should prepare and file a VOP if a probationer submits as a true specimen a substance that attempts to defraud the administration of a drug test. If defrauding is involved, the prosecutors office will determine if criminal charges should be filed under the law as described in N.J.S.A. 2C: 36- 10(a),(d),(e). Directive #7-08 Adult Violation of Probation Guidelines and Procedures Section II. Guidelines for Filing a VOP 9 9. You shall support your dependents and meet your family responsibilities. The probation officer may prepare and file a VOP where the probationer fails to make child support payments (Child Support Enforcement Unit can be contacted for arrearage amount), fails to keep school age children in school, fails to provide food and shelter, abandons, abuses or neglects children, or engages in other conduct the probation officer deems inappropriate. The probation officer should consult with the supervisor in determining when to file a VOP. 10. You should seek and maintain gainful employment and promptly notify your officer when you change your place of employment or find yourself out of work. The probation officer may prepare and file a VOP if the probationer willfully fails to seek, obtain and maintain employment. The probation officer should assist the probationer in taking all steps possible to seek, obtain and maintain employment. The probation officer should consult with the supervisor in determining whether to file a VOP. 11. You shall not have in your possession any firearm or other dangerous weapon as defined in N.J.S.A. 2C: 39 et seq. If you possess a permit to purchase a handgun or a firearms purchaser identification card, you must surrender these documents promptly to your probation officer. In addition, if you presently own any weapons, they must be surrendered either to your local police department or to any other criminal justice agency designated by your probation officer. The probation officer shall prepare and file a VOP if a probationer fails to surrender any firearm, dangerous weapon, permit to purchase a handgun, or firearms purchaser identification card after being notified to do so. Probationers must not have dangerous weapons in their possession throughout the probation term. Probationers are required to surrender weapons legally or illegally possessed and may not acquire other weapons while on probation. 12. You shall make payments on any fine, penalty assessment, restitution or other financial obligation as provided by Court order. Failure to comply may result in further Court action, pursuant to N.J.S.A. 2C: 46-2b including attachment of your wages, filing of a civil judgment, and/or extension of your probation term. The probation officer may prepare and file a VOP if a probationer fails to make payments on financial obligations as provided by court order. If this is the only Directive #7-08 Adult Violation of Probation Guidelines and Procedures Section II. Guidelines for Filing a VOP 10 condition being violated, the probation officer should consider sending the case to the Comprehensive Enforcement Program (CEP) for enforcement instead of filing a VOP. The probation officer should consult with the supervisor in determining whether to file a VOP. 13. You shall provide a DNA sample as a condition of the sentence imposed, pursuant to DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17, et seq. (see L. 1994, c. 136, as amended by, L. 2000, c. 118, as amended by L. 2003, c. 183 effective Sept.22, 2003) unless you are convicted of a disorderly persons offense or a petty disorderly persons offense. A probation officer shall prepare and file a VOP as soon as the probation officer becomes aware that the probationer has willfully refused to submit a DNA sample. Generally, Criminal Division staff directs the probationer to report for DNA sample collection, usually by the Sheriff, immediately following sentencing. If a county is unable to collect the DNA sample immediately, Criminal Division staff provides the probationer with a date, time and site to report for DNA sample collection. 14. Special Conditions The court has the authority to impose other conditions at the time of sentencing. The Code of Criminal Justice provides that in addition to the standard conditions, the court may require the probationer to satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience. See N.J.S.A. 2C:45- 1(b)(12). Any court-ordered special condition is to be enforced on the same basis as a Standard Condition of Probation. Directive #7-08 Adult Violations of Probation Guidelines and Procedures Section III. Procedures for Filing a VOP 11 III. PROCEDURES FOR FILING ADULT VIOLATIONS OF PROBATION NOTE: These procedures are tailored to Superior Court cases, but may be adapted for VOPs arising out of Municipal Court sentences. 1. Response to probationer non-compliance Probation supervision offers probationers the conditioned liberty opportunity to remain in the community subject to compliance with the rules and conditions imposed by the sentencing judge. Standard and special conditions impose obligations and restrictions on the probationer. Non-compliance with standard and special conditions of probation requires a response by the probation officer. The following steps should be followed when a probation officer believes the probationers non-compliance is of such a nature that a VOP should be filed. 2. Consultation with the Supervisor The probation officer must consult with the supervisor to review the case and validate that the guidelines for VOPs are being applied fairly and equally, there is appropriate use of professional discretion, and justification to file a VOP. 3. Preparation of Violation of Probation documents N.J.S.A. 2C:45-4 requires that prior to revocation of suspension of sentence or probation, the defendant must be provided with written notice of the grounds for the proposed action. Further, the defendant must be afforded a hearing at which he has the right to hear and controvert the evidence against him, to offer evidence in his defense and to be represented by counsel. These requirements are consistent with the minimum safeguards required as a matter of due process as set forth by the U.S. Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778 (1973). Consistent with the probationers due process rights the probation officer must prepare the VOP Statement of Charges (Form: CN 10076) which is a detailed description of the alleged violations (sample charging language is on the back of the form); the VOP Summary (Form: CN 10077) which provides information documenting the probation officers efforts to secure the probationers compliance with the court order and/or serves as a summary for sentencing purposes; possibly the VOP Addendum (Form: CN 10214) if an update to the VOP Summary is needed; and the VOP Hearing Summons (Form: CN 10075) Directive #7-08 Adult Violations of Probation Guidelines and Procedures Section III. Procedures for Filing a VOP 12 which informs the probationer of the date, time and place of the hearing, advising of the opportunity to be heard as to the allegations and that a warrant may be issued for failure to appear. The right to be represented by counsel is also indicated. When a probationer is authorized to move, supervision is transferred to the county of residence. When the probationer violates the conditions of probation after such an intercounty transfer occurs, the supervising county prepares the VOP documents (Forms: CN 10076. 10077, 10214, 10075) and forwards these to the sentencing county. The sentencing county will schedule the VOP hearing and send out the notices (Forms: CN 10076, 10075) to the defendant and advise the probation officer in the supervising county of the date and time of the hearing. (see Probation Supervision Manual, Inter-county Transfer Procedures, section 2200, J. 1-9) 4. Supervisor reviews and signs VOP documents The VOP Statement of Charges, Summary and Addendum (Forms: CN 10076, 10077, and 10214) each contain lines for the supervisors signature which ensures that the VOP report has been reviewed and is accurate. 5. The Chief Probation Officer or designee reviews and signs VOP Hearing Summons The VOP Hearing Summons (Form: CN 10075) contains a line for the signature of the Chief Probation officer, indicating that the Chief Probation Officer has approved the action. 6. Scheduling of the VOP hearing date Generally, one of three methods is used to select a hearing date: