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

2. 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 Directive for Immediate Sanction Probation Pilot Project (2012) 2 Background

3. 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 3 Background Model for Virginia’s Pilot Program

4. 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 Who are the key stakeholders? 4 Key Components of Pilot Project

5. 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 What offenders are eligible? 5 Key Components of Pilot Project

6. Candidates for the program will be identified based on risk: 1. Risk of recidivism / risk of violent recidivism Determined by the COMPAS risk assessment instrument already used by the Department of Corrections 2. Risk of failing probation due to revocation Accumulating multiple technical violations increases likelihood that the offender’s probation will be revoked How will candidates for the program be identified? 6 Key Components of Pilot Project

7. How does an offender get into the program? 7 Key Components of Pilot Project Offender will be placed on the court’s docket for judge to consider offender for 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

8. 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 How does an offender get into the program? 8 Key Components of Pilot Project

9. 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 What happens once an offender is in the program? 9 Key Components of Pilot Project

10. 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 What happens when a violation is detected? 10 Key Components of Pilot Project

11. 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 How will violation hearings be conducted? 11 Key Components of Pilot Project Expedited hearings should be brief (7-8 minutes each)

12. 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) When is an expedited hearing not conducted? 12 Key Components of Pilot Project

13. 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 What access will the defendant have to defense counsel? 13 Key Components of Pilot Project

14. 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 What are the consequences for violations? 14 Key Components of Pilot Project Program Violation Mandatory Incarceration 1 st violation3-7 days 2 nd violation5-10 days 3 rd violation7-14 days 4 th violation10-20 days 5 th violation15-25 days 6 th violation or subsequent 20-30 days 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)

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

16. 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 How can an offender be removed from the program? 16 Key Components of Pilot Project

17. Activities to Date

18. 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 Commission approved program’s design and potential pilot sites Staff began drafting manual, warning script, forms, etc. DOC confirmed resources for one probation officer for each site

19. 19 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 Meeting with stakeholders in Hampton – declinedHenrico program began Site meetings: Henrico (2) Staff provided draft manual to DOC for comment 2012 October November December

20. 20 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) 2013 January February March April 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. 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 21 Other Tasks

22. 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 22 Other Tasks

23. 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. 24 Status in Henrico 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 Program Participants (as of March 14) 5 Program Violations (as of March 14) 1

25. 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. 26 Status in Lynchburg 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 Program Participants (as of March 14) 6 Program Violations (as of March 14) 5

27. 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. 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. 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 29 Action Plan