Immediate Sanction Probation Pilot Project Status Update

1. Immediate Sanction Probation Pilot ProjectStatus Update Virginia Criminal Sentencing Commission March 18, 2013

2. Directive for Immediate Sanction Probation Pilot Project (2012) In 2012, the General Assembly directed the Virginia Criminal Sentencing Commission to implement an immediate sanction probation program in up to 4 pilot sites The program is designed to target technical probation violators The concurrence of the chief judge of the circuit court and the Commonwealth’s attorney is needed for the locality to participate as a pilot site Pilot program will last until June 30, 2014 Background

3. Model for Virginia’s Pilot Program Hawaii’s Opportunity Probation with Enforcement (HOPE) program was established in 2004 by Judge Steven Alm of Hawaii’s First Circuit Focus is on offenders at-risk for failing probation The goal is to improve compliance with the conditions of probation by applying swift and certain sanctions for each violation A federally-funded evaluation of HOPE found a significant reduction in recidivism rates, as well as technical violations and drug use among participants Background

4. Who are the key stakeholders? • Judges • Commonwealth’s Attorney and staff • Probation officers • Public defender’s office / court-appointed attorneys • Arresting agencies: Sheriff’s Office and/or police department • Jail administrators: Sheriff’s Office or regional jail • Clerk of Court and staff Key Components of Pilot Project

5. What offenders are eligible? Offender must: • Be 18 years of age or older • Not have any current or prior violent convictions or adjudications (as defined in § 17.1-805) • Be on supervised probation for a felony conviction • Be under supervision in the same jurisdiction where the offender was sentenced • Not have a diagnosis involving a severe mental health issue Key Components of Pilot Project

6. How will candidates for the program be identified? Candidates for the program will be identified based on risk: • Risk of recidivism / risk of violent recidivism Determined by the COMPAS risk assessment instrument already used by the Department of Corrections • Risk of failing probation due to revocation Accumulating multiple technical violations increases likelihood that the offender’s probation will be revoked Key Components of Pilot Project

7. How does an offender get into the program? Risk of recidivism/violent recidivism Determined by the COMPAS risk assessment instrument Represents risk of failing probation due to revocation Ideally, offender should appear before the judge within 7 days Offender should have or be assigned counsel Offender will be placed on the court’s docket for judge to consider offender for program Key Components of Pilot Project

8. How does an offender get into the program? If the offender is put into the program: • Offender’s probation will not be revoked • Show cause will be continued • Sentence will remain suspended • Conditions of suspended sentence will be modified to require participation in the program • Judge will warn new participants that probation terms will be strictly enforced and violations will have immediate consequences Key Components of Pilot Project

9. What happens once an offender is in the program? • Program participants will be frequently reviewed by probation officer to ensure that there are no violations of terms or conditions • When first entering the program, participants will undergo frequent, unannounced drug testing • 4 to 6 times per month for first month • For offenders testing negative, frequency of testing will gradually be reduced Key Components of Pilot Project

10. What happens when a violation is detected? • Upon detection of a violation, the probation officer shall immediately issue a PB-15, authorizing the offender’s arrest • Offender should be arrested by a police officer or Sheriff’s deputy as quickly as possible Key Components of Pilot Project

11. How will violation hearings be conducted? Expedited hearings should be brief (7-8 minutes each) • The court establishes an expedited process for dealing with violations • Typically, one or two judges will oversee this program for the court • Ideally, expedited hearings are conducted multiple days of the week so that an offender does not wait in jail more than 48 to 72 hours before appearing (unless taken in on a Friday or holiday) • Judges determine how this should be achieved in terms of docketing Example: Monday, Wednesday, Fridays 1:00-1:30pm Key Components of Pilot Project

12. When is an expedited hearing not conducted? • Court must conduct an expedited hearing unless: • It is alleged that the offender committed a new crime or infraction, • It is alleged that the offender absconded for more than 7 days, or • Offender, Commonwealth’s Attorney, or the court objects to the hearing If so, the violation will be handled through the normal violation process (per § 19.2-303.5) Key Components of Pilot Project

13. What access will the defendant have to defense counsel? A public defender (if an office exists in the site) should be assigned to each session in which the court will hold expedited hearings If there is no public defender office in that locality, a cadre of court-appointed attorneys should be assigned to cover the expedited hearings The offender can call a private attorney Offender can waive counsel Key Components of Pilot Project

14. What are the consequences for violations? After repeated positive drug tests, the court may order a full substance abuse assessment If addicted, the defendant may be referred to substance abuse treatment (if suitable) or drug court (if available) While the offender is participating in the program, each violation results in mandatory jail time Show cause will be continued Probation office will lift the PB-15 Key Components of Pilot Project

15. What about the current Probation Violation Guidelines? The Commission’s probation violation guidelines, which apply to technical violations, will not be used for program participants Key Components of Pilot Project

16. How can an offender be removed from the program? The court may remove the offender from the program at any time and, at the court’s discretion, revoke probation Offender will be removed from the program if convicted of a new criminal offense If an offender has gone 12 months since his/her last violation, offender should be considered as having “successfully completed” the program Key Components of Pilot Project

17. Activities to Date

18. 2012 May June July August September General Assembly adopted budget language directing the Commission to implement the Immediate Sanction Probation pilot project Secretary of Public Safety discussed the legislative directive with Commission members and communicated the Governor’s support for the program Staff developed proposals for the program’s design and identified potential pilot sites Commissionapprovedprogram’sdesignandpotentialpilotsites Staff began drafting manual, warning script, forms, etc. DOC confirmed resources for one probation officer for each site

19. 2012 October November December Meeting with stakeholders in Henrico – agreed to participate Meeting with stakeholders in Newport News – declined Meeting with stakeholders in Lynchburg – agreed to participate Henrico planning meeting Henrico program began Site meetings: Henrico (2) Staff provided draft manual to DOC for comment Meeting with stakeholders in Hampton – declined

20. 2013 January February March April Lynchburg planning meeting Lynchburg program began Meeting at DOC headquarters with Deputy Director, regional administrators, probation chiefs, and immediate sanction probation officers Site meetings: Lynchburg (1), Henrico (2) Meeting with stakeholders in Chesapeake Site meetings: Lynchburg (1) Planned: Meeting at DOC headquarters, site meeting in Henrico Planned: Second meeting with stakeholders in Chesapeake

21. Other Tasks • Implementation manual, warning script, and forms • Provided to DOC for comment • Comments incorporated • Updates made as needed • Template court orders • Placement in the program • Program violations • Payment process for court-appointed attorneys working with the program in Henrico

22. Other Tasks • Codes to identify and track program participants • DOC’s VA-CORIS system • Local Inmate Data System used in the jails • Codes for tracking court hearings • Supreme Court’s Case Management System (CMS) used by clerks • Point-of-contact for each office/agency identified and contact lists created for each pilot site • To facilitate swift communication process

23. Status in Henrico • Start date: November 1, 2012 • Two judges have been designated to oversee the caseload and the hearings • Judge Yoffy and Judge Wallerstein • DOC has designated a probation officer to supervise the offenders in the program • Judge Wallerstein contacted several court-appointed attorneys who agreed to provide defense counsel to offenders in the program • These attorneys were briefed on November 6

24. Status in Henrico Program Participants (as of March 14) 5 Program Violations (as of March 14) 1 • Sheriff and Chief of Police agreed to arrest program violators quickly • The two offices are coordinating to work out ways to divide the additional duties • Judges conduct expedited hearings on Monday, Wednesday, and Friday at 1:00pm

25. Status in Lynchburg • Start date: January 1, 2013 • One judge is overseeing the caseload and hearings • Judge Yeatts • Backup will be a substitute judge • DOC designated a probation officer to supervise the offenders in the program • Officer originally assigned was promoted • Another probation officer has recently been assigned to the program • The Public Defender is working with the program

26. Status in Lynchburg Program Participants (as of March 14) 6 Program Violations (as of March 14) 5 Originally held as needed, Lynchburg has now set expedited hearings for Monday, Wednesday, and Friday at 1:00pm Amherst and Campbell County Sheriffs have agreed to execute Lynchburg PB-15s quickly, thereby expanding the pool of potential program participants to those living outside the city

27. Program-Related Issues • Number of eligible offenders appears to be less than expected • Offenders being supervised in the pilot site who are under the jurisdiction of another court are not eligible • Offenders with current or prior violent felonies are not eligible • Probationers are not being referred to the Immediate Sanction Probation Officer to be considered for the program at the rate that was anticipated

28. Program-Related Issues • Some PB-15s have not been executed as quickly as desired • This has resulted in delays in getting offenders in front of the judge to be considered for placement in the program • More importantly, participants who violate must be arrested as quickly as possible so that sanctions can be imposed swiftly

29. Action Plan • Commission staff will continue to work with the pilot programs to address eligibility concerns and facilitate the referral of potential candidates to the Immediate Sanction Probation Officer • Meeting at DOC headquarters on March 29 • Commission staff will continue to work with the pilot sites on an approach to facilitate the expedited service of PB-15s and Show Cause orders