B. PROCEDURE
1. Summary. The procedure adhered to by the
Board is a two-step process. Upon the issuance of a parole violation warrant
and the parolee's subsequent arrest on the warrant, a preliminary hearing is
held. If, on the basis of evidence presented at the preliminary hearing, the
preliminary hearing officer determines that there is probable cause to believe
that a condition of parole has been violated, the parolee may be required to
appear before the Board for final adjudication of charges. This procedure is
outlined in detail below.
2.
Arrest. The parole revocation process is initiated by arrest of the alleged
parole violator pursuant to a parole violation warrant issued by the Director
of Probation and Parole (Appendix page 30). A parole officer or any other law
enforcement officer may make the arrest. A parole officer may also arrest a
parolee without a warrant; however, if the officer does not obtain approval for
a warrant from the Director of Probation and Parole by the close of the next
business day, he must release the parolee from custody.
3. Preliminary Hearing.
a. When held - Whenever a parolee is arrested
on a warrant issued for an alleged violation of parole, a preliminary hearing
shall be held within a reasonable time after the arrest of the parolee (usually
72 hours) at or near the place of the alleged violation or arrest. The main
purpose of the preliminary hearing Is to determine whether there is probable
cause or reasonable grounds to believe that the parolee has violated a
condition of parole.
b. Procedure -
Immediately following arrest and confinement, the alleged parole violator shall
be given written notice of charges pending against him (Parole Violation Report
(Appendix page 29). Also, he shall be advised of his right to a preliminary
hearing and shall be asked to execute a form in which there are two questions:
(1) Do you desire to confront adverse
witnesses" (2) Do you desire to call witnesses on your own behalf" (Form
entitled, "Preliminary Hearing Notice", Appendix page 31)
Copies of the "Parole Violation Report (Appendix page 29),
warrant (Appendix page 30), list of adverse witnesses and notice of the date,
time and place of the preliminary hearing will be provided to the inmate and/or
counsel (Appendix page 31). The date scheduled for the hearing shall allow a
reasonable time for the alleged violator to prepare his case or seek a
continuance.
The preliminary hearing shall be conducted by a hearings
officer designated by the Director of Probation and Parole. Any relevant
evidence may be considered. If the parolees supervising officer has cause to
believe that revealing the identity of an adverse witness(es) would put that
witness in jeopardy, the identity (after consulting with the supervisor) shall
be withheld, and the parolee shall not be allowed to cross examine the
witnesses). The hearings officer shall make a written summary of evidence
adduced at the hearing, the reasons for the finding that probable cause does or
does not exist and the reasons for disposition.
c. Disposition Given a finding of probable
cause, the preliminary hearings officer may (1) Return the parolee to the
institution for appearance before the Board, or (2) not return the parolee to
the institution, in which case the parole violation warrant shall be withdrawn.
If the decision is to have the alleged violator appear before
the Board for final hearing, the hearings officer shall then determine whether
the parolee shall be incarcerated pending the final revocation hearing or
whether he shall be set free on his personal recognizance pending that hearing.
The hearings officer shall not release on personal recognizance if he feels the
parolee is a threat to the community or 13 likely to abscond. The hearings
officer will complete the forms necessary for a final hearing before the Board
(Appendix pages 32 - 34).
4. Revocation Hearing Before the Parole
Board.
a. When held - When probable cause for
revocation has been found by a preliminary hearings officer, an alleged parole
violator shall have the right to a final hearing before the Board at the next
meeting of the Parole Board.
b.
Purpose - The final hearing shall determine (1) whether the alleged violator
has in fact committed an act(s) which constitutes) a violation of the
conditions of his parole, and (2) whether this act(s) is (are) of such a nature
as to warrant revocation of parole. The standard used by the Board is a
preponderance of evidence.
c.
Procedure - The alleged violator shall be given a copy of -the form entitled,
"Notice of Hearing of Parole Violation" (Appendix page 33). This notice informs
the parolee of the time and place of hearing, the alleged parole violation, a
summary of the evidence of the violation to be used at the hearing and his
opportunity to introduce evidence. The Parole Board at its discretion may
appoint counsel, if requested, in the following situations:
(1) When the parolee contests the factual
basis of the violation; or
(2)
When, even if the violation is based on a new conviction, there are substantial
reasons which justify or mitigate the violation and proof of the justifying or
mitigation factors requires a complex or detailed presentation; or
(3) When the parolee is incapable of
effectively speaking for himself; or
(4) When the parolee's condition is such that
he seems. unlikely to comprehend the nature of the proceeding and his rights
therein.
In any case in which counsel is requested and not appointed,
the reasons for the failure to appoint must be explicitly stated in the record.
If the parolee is represented by counsel, after consultation with counsel, he
may change his election as to the presence of witnesses. The parolee or his
attorney shall be provided a summary of the preliminary hearing, a copy of the
form entitled, "Notice of Hearing of Parole Violation", as executed by the
parolee and a copy of the form entitled, "Procedures for Parole Revocation"
(Appendix pages 35 37).
d. Witnesses - The witnesses who have
appeared at the preliminary hearing need not appear in person at the final
hearing if both the parolee, or his attorney, and the supervising parole
officer agree that the preliminary hearing report contains a fair and accurate
statement of the witnesses' testimony and they consent to its introduction as
such before the Board.
If the parolee elects to be confronted by adverse witnesses,
he shall be given the names of those witnesses at least three days prior to the
Board hearing. If the Parole Board has caused to believe that revealing the
identify of an adverse witnesses) would put that witness in jeopardy, or cause
disruption within the institution, his/her identity may be withheld from the
parolee and no cross examination shall be allowed. If the parolee elects to
call witnesses on his own behalf, it is his responsibility, (or the
responsibility of counsel), to notify them of the hearing, although if
requested, the Board will undertake to do so.
The Board has the power to subpoena witnesses.
e. Format of Hearing - The Board
tape records violation hearings which are in two phases:
(1) Adjudicatory Phase (Proof of Violation) -
Proof of violation of criminal law shall be sufficient if an official record of
conviction is received into evidence.
A parolee may waive his right to the adjudicatory phase by
pleading guilty to the violation in which case the Board will conduct the
dispositional phase only.
If the parolee does not waive his right to the adjudicator
phase of the hearing, he may elect to confront the witnesses listed on the
notice form (Appendix page 33). He may also present his own witnesses. All
witnesses shall be subject to examination by members of the Board,
representatives of the Division of Probation and Parole and the parolee and/or
his counsel.
If the parolee waives confrontation of adverse witness(es),
official parole violation reports and other official records may constitute
proof of violation without testimony from the supervising officer or other
witnesses). After prosecution and defense presentations have been concluded,
the Board shall deliberate in executive session and announce its finding. If
the Board finds that a violation has been committed, it shall state orally and
in writing the reasons for violation (Appendix page 38). In addition, within
ten (10) days the Board shall send the inmate a memorandum restating in more
detail the reason for the finding of violation.
(2) Dispositional Phase - The Board shall
receive into evidence official records concerning new convictions or
non-criminal violations of parole conditions and oral and written statements
from the parolee, his counsel and other persons having information relevant to
the case.
The range of dispositional alternatives include:
(a) continuing parole;
(b) denying parole for time served;
(c) denying parole for a specified period of
time;
(d) continuing the hearing
until the expiration of a concurrent criminal code sentence when the inmate is
again eligible for parole;
(e)
discharging the parolee to begin serving a new sentence, either immediately or
after a specified period of time.
After determining the appropriate disposition, the Board
shall complete the order set forth in the Appendix page 38.
