Serving Clients in the Second Circuit and the Eastern and Southern Districts of New York
Supervised Release
Most federal sentences include some term of either probation or supervised release. The main difference between probation and supervised release is that probation is served instead of a prison sentence, while supervised release is served after release from a prison sentence. For both supervised release and probation, the client will be supervised by a probation officer.
The probation officer’s job is twofold: (1) to assist clients in the transition from prison to the community and (2) to make sure that the client follows all of the conditions which have been set by the judge. It is extremely important for clients to establish a good relationship with the assigned federal probation officer. The probation officer can be a good resource for programs involving education and vocational training. In some cases, a probation officer can also assist with issues related to substance abuse treatment and psychological counseling.
Violations of Supervised Release and Probation
A violation of probation or supervised release usually involves breaking one of the rules set by the judge. Some examples of violations are using drugs, failure to report or stay in touch with the assigned probation officer, and committing a new crime. Not all violations of probation and supervised release result in a prison sentence. It is a good idea to consult with the federal defender who handled the case for sentencing, if a client has any concerns about a possible violation. Sometimes an issue can be resolved without a formal violation being filed.
Violation Specifications
If the probation officer believes that a client has violated probation or supervised release, the officer can file a notice of violation which sets forth the "violation specifications." The specifications are the charges or allegations made by the probation officer which describe exactly what kind of violation the officer believes has occurred.
Initial Appearance
Once violation specifications have been filed, the client must appear in court. At the first appearance, the client will be informed of the nature of the violation and a lawyer will be appointed. If the client was previously represented by the Federal Defenders of New York, the office will continue to represent the client, and in most cases the same lawyer who handled the original sentencing will continue to represent the client throughout the violation hearing process. This first appearance may take place either in magistrate court in front of a magistrate judge or in front of the judge who imposed the original sentence and set the conditions of supervision. If the initial appearance is before a magistrate judge, a conference before the sentencing judge will usually take place within a few days after the initial appearance.
Violation Hearing
After the client has been informed of the nature of the violation, he will be asked to either "admit" or "deny" the specifications. If the client denies any of the specifications, he is entitled to a hearing to determine if a violation has occurred. At the hearing, there is no jury. The judge will decide what happened. Both the prosecutor and the defense lawyer are entitled to present evidence and witnesses. A client may testify on his own behalf at a violation hearing. The standard for being convicted of a violation is different than the standard for conviction at a trial. The burden of proof is lower at a violation hearing. At a violation hearing, proof beyond a reasonable doubt is not required. Instead, proof by a preponderance of the evidence is necessary.
In some cases, the parties can reach an agreement where the client will admit to one or more of the specifications, and the other specifications will be dismissed. In some cases, the judge will allow the specification to remain open, or pending, to give the client an opportunity to improve his compliance with the terms of supervision. After a certain period of good behavior, sometimes violation specifications can be dismissed or withdrawn.
Consequences of a Violation of Probation
If the judge finds that the client violated the conditions of probation, the judge can either continue the term of probation or revoke probation. If probation is continued, the judge can change the conditions. If probation is revoked, the judge will impose a new sentence. The new sentence could include a jail sentence, home confinement, or another term of probation. If the judge imposes a jail sentence, he may also impose a new term of supervised release to follow the jail sentence.
Consequences of a Violation of Supervised Release
If the judge finds that the client has violated the conditions of supervised release, the judge may continue the term of supervision, modify or add conditions, or revoke the supervised release. Upon revocation, a judge may impose a new sentence which includes a prison sentence even if the client has already served a substantial period of time on supervision. For example, if a client has served two and one half years of a three year term of supervision, and then violates, the judge can impose a jail sentence followed by additional supervised release, without giving any credit at all for the two and one half years already served on supervision. In many cases, a judge is not required to impose a prison sentence after a violation. The judge can also impose home confinement or a new term of supervision.
Consequences of a New Conviction
Any new criminal conviction is a violation of probation and supervised release. A client should be very cautious accepting a plea bargain for a new criminal charge without first consulting with defense counsel. After a new conviction, a client could be required to serve an additional sentence for a violation, on top of whatever sentence the client has to serve on the new case. Although a judge is allowed to impose a violation sentence to run concurrently, or at the same time, with the sentence on the new case, the judge is also allowed to impose a violation sentence to run consecutively, or in addition to the other sentence. Indeed, the federal sentencing guidelines recommend that any violation sentence run consecutively to a sentence imposed on a new criminal conviction.
Early Termination of Probation or Supervised Release
In some cases, if a client is doing exceptionally well on supervised release or probation, and has already paid off any fine or restitution, a judge may cut short the term of supervision. This is not done in most cases. However, if the client has completed two thirds of his term of supervision, has had no violations and complied with all the terms of supervision, and has paid all restitution and fines, the client should consider contacting his federal defender to write to the judge to request an early termination. An early termination request is more likely to be successful if the supervising probation officer agrees with the request.