Revocation of Parole in New York State
When on parole or post-release supervision (“PRS”), a person is at liberty after serving time in prison. The parolee is under the supervision of a parole officer (“P.O.”) and must follow certain conditions. And if the parolee violates those conditions, he or she may be returned to state prison. This is called parole revocation.
When Can a Parolee Be Arrested?
If the P.O. has reasonable cause to believe that a parolee has violated one or more of the conditions of their release, a warrant may be issued. Then, the warrant will remain in effect through the violation process, and the parolee will be held without bail. After that, the parolee will receive a Notice of Violation within three days of the warrant. The parolee will also receive a Violation of Release Report that lists the alleged violation(s).
Types of Violations
A parolee can be violated for any new criminal charge, whether that charge ultimately leads to a conviction or not. And any conviction will also incur penalties. More often, a parolee will be violated for a “technical violation.” This is a violation of a condition of parole, rather than committing a new crime.
Technical violations can include:
- Moving without discussing it with the P.O.
- Being with anyone who has a criminal record
- Leaving the state without permission
- Consuming alcohol
- Using performance-enhancing sexual aids (including prescriptions)
- Accessing the Internet
- Possessing a computer
- Visiting chat rooms or other social media sites
- Not abiding by a curfew
The Preliminary Revocation Hearing
A parolee is entitled to a Preliminary Hearing within fifteen days of the warrant. While a parolee may waive this hearing, it is usually advisable not to waive the hearing. But if the hearing is waived, he or she may not have a Final Hearing for up to ninety days.
At the Preliminary Hearing, a Preliminary Hearing Officer (“PHO”) will determine if there is probable cause to believe the parolee has violated a condition of release. If the parolee denies the violation, the NYS Department of Corrections and Community Supervision (“DOCCS”) must present evidence and testimony. After that, the PHO will issue a decision following the hearing.
If there is a finding of “Probable Cause,” the violation will proceed to the Final Hearing stage. If there is a finding of “No Probable Cause,” the PHO will order the warrant be lifted and the parolee will be restored to supervision.
Note that there is no Preliminary Hearing if a parolee has been convicted of a misdemeanor. If the parolee is convicted of a felony and sentenced to prison, supervision will be revoked and there are no parole revocation hearings. If the felony conviction does not involve prison, there will be a Final Hearing.
The Final Revocation Hearing
At a Final Hearing, the parolee will be represented by an attorney, and DOCCS will be represented by a Parole Revocation Specialist. Both sides will have the opportunity to present evidence and examine witnesses. The parolee can also present mitigating evidence. An Administrative Law Judge (“ALJ”) (or sometimes a member of the Parole Board) will conduct the hearing. The ALJ will determine which charges have been sustained by a preponderance of the evidence.
If no charges are sustained, the ALJ will dismiss the charges and order the warrant lifted. If one or more charges are sustained, a delinquency date will be established based on the earliest proven date of the violative behavior. The parolee will receive a copy of the final decision as to the charges and the penalties. The parolee can appeal from the decision.
What Are the Penalties for Revocation?
Penalties can include time assessments, diversion programs, or “revoke and restore” to supervision. The penalty is based on a number of considerations and the category the parolee falls into. The category is based on criminal history, crime of conviction, prior violations, and the nature of the current violation.
For Category 1 violators, the time assessment can be no less than 15 months. A reduced assessment of 12 months may be imposed with mitigating circumstances. Some Category 1 violators can also be put into a diversion program at Willard Drug Treatment Center. This is a ninety day residential drug and alcohol treatment program operated by DOCCS.
Category 2 violators will be revoked and restored to the diversion program at Willard Drug Treatment Center. However, some parolees may be exempted from the program. This can include where the parolee has less than nine months left on their sentence.
For Category 3 violators, the penalty is based on the time spent in custody prior to the hearing. If the violation was for a new violent felony offense, the penalty is time in custody plus six months. For a non-violent felony offense, the penalty is time in custody plus three months.
There are also Persistent Violators – Category 2 or 3 cases with two prior sustained violations. Upon a third of subsequent violation, the violator may receive up to 12 months. But if a violator does not fall into any of these categories, the penalty is decided by the ALJ or the Board of Parole.
References:
- 9 NYCRR Part 8004
- 9 NYCRR Part 8005
- NYS Department of Corrections and Community Supervision, Community Supervision Handbook – Questions and Answers Concerning Release and Community Supervision (July 2017). Available at: http://www.doccs.ny.gov/pdf/Community_Supervion_Handbook.pdf (last accessed June 18, 2019).