SB 39 LIMIT INCARCERATION FOR TECHNICAL VIOLATIONS

Sen Bill B. O'Neill

Actions: [1] SCC/SHPAC/SJC-SCC

Scheduled: Not Scheduled

 Senate Bill 39 (SB 39) relates to criminal justice and limits incarceration for technical violations of probation and parole. It also alphabetizes and adds new definitions.   

 Senate Bill 39 (SB 39) amends sections of the Probation and Parole Act by limiting the use of incarceration for technical violations of probation and parole.  

A “technical violation” of probation or parole is defined as a willful violation of a condition of probation or parole that is not a standard violation, including a positive chemical test for alcohol or controlled substance consumption or missing a scheduled supervision appointment.   

A “standard violation” of probation or parole is any violation that: (1) violates a condition that the person refrain from having contact with a victim or witness; (2) constitutes absconding; (3) constitutes a new crime that is not a technical violation; or (4) for a sex offender or serious violent offender, any contact with the victim or any violation of a condition designated by the court as a standard violation.  The bill allows a court to designate specific conditions as conditions that constitute a standard violation of probation for sex offenses or serious violent offenses; the court must first find by clear and convincing evidence that these additional conditions are necessary to ensure public safety or the safety of a particular individual. 

The bill gives the Parole Board (Board) additional ways to address parole violations.  For technical violations, the bill requires the director of the parole board to issue a notice to appear served personally on the parolee unless the director authorizes an arrest warrant.  The director may arrest the parolee without a warrant if the parolee has committed a standard violation of parole and presents a flight risk or danger to the community.   For standard violations of parole, the Board may impose the current sanctions of continuing or revoking parole, or the Board may impose detention for up to 90 days, which is to be counted as time served under the sentence. 

The bill provides a scheme for how the Parole Board may address technical violations of parole. However, the Board can impose incarceration beyond these terms if the Board finds that additional detention is necessary for the parolee’s rehabilitation or public safety. For a first technical violation, the Board can impose a sanction of up to three days of community service, a curfew, counseling, or other non-detention sanction.  For a second technical violation, up to five days of community service can be imposed, along with the other sanctions.  For a third technical violations, up to seven days of incarceration can be imposed.  For a fourth or subsequent technical violation, up to 30 days of incarceration can be imposed, or any other order as the Board sees fit.      

The bill gives a court additional ways to address probation violations.  In addition to the ability to continue or revoke probation or require the probationer to serve the balance of the sentence, the bill allows a judge to also impose different sanctions for technical violations of probation.  However, a judge may impose incarceration beyond these terms if the judge finds that additional detention is necessary for the probationer’s rehabilitation or public safety. For a first technical violation, a judge can impose no more than three days of community service, curfew, treatment or other non-detention sanction.  For a second technical violation, a judge can impose no more than five days of community service, curfew, treatment, or other non-detention sanction.  For a third technical violation, a judge can impose no more than three days of incarceration.  For a fourth or subsequent technical violation, a judge may continue the original probation or revoke the probation and either order a new probation or require the probationer to serve the balance of their sentence in jail.  

The bill also makes stylistic changes to sections of the Probation and Parole Act by alphabetizing definitions and adding a definition for “absconding” (which means when a person under supervision willfully makes their whereabouts unknown or fails to report without notice for three or more consecutive appointments).    
 

 Current law provides that for any parole violation, the Parole Board may continue or revoke the parole or enter any other order as it sees fit.  For any probation violation, a judge may continue the probation or revoke it and order a new probation or require the probationer to serve the balance of the sentence in jail.  There is currently no distinction in law between “standard” and “technical” violations of probation or parole.   

 SB 39 is related to SB 276