What Rights Do I have If I Violate My Probation?
In 1965, Gerald Scarpelli pleaded guilty to an armed robbery charge in Wisconsin. Scarpelli was sentenced to prison for a term of 15 years, but his sentence was suspended and he was placed on probation for a seven-year term. Weeks after his sentencing, Scarpelli was apprehended by police while in the course of burglarizing a residence in Illinois. After being informed of his constitutional rights, Scarpelli admitted to police his involvement in the burglary of the Illinois home. The Wisconsin Department of Public Welfare, upon learning of Scarpelli’s crime in Illinois, subsequently revoked his Wisconsin probation, without a hearing on the matter, and he was incarcerated in the Wisconsin State Reformatory to begin serving the 15 years to which he had been sentenced by the trial judge. Scarpelli later challenged the revocation of his probation on the basis that his confession was made under duress and that he was not afforded a hearing on the matter.
This landmark case, Gagnon v. Scarpelli, 411 U.S. 778 (1973), gave rise to an important development in criminal prosecution and procedure. In this case, the U.S. Supreme Court extended the Fourteenth Amendment due process protections to the parole revocation process, holding that a probationer’s sentence can only be revoked after a preliminary revocation hearing and a final revocation hearing. These hearings are now commonly known as Gagnon I and Gagnon II hearings.
If an individual violates the conditions of his probation, either through a technical violation, such as failing a drug urine test or failing to report to a probation officer, for example, or a direct violation, which is the commission of an unlawful act or conviction in a new criminal case, as a result of the Gagnon case, he is now guaranteed certain due process rights.
An individual who has violated the conditions of her parole or probation, is entitled to two hearings. The first hearing, called a “Gagnon I hearing” places the defendant on notice of the charges against her and requires the prosecution to demonstrate that probable cause existed that the defendant violated the probation conditions. At this hearing, the court will determine whether a defendant shall remain in custody until a final hearing on the matter may be held, which is known as a “Gagnon II hearing.” This initial hearing is also called a “detainer hearing.”
A probationer or parolee is also entitled to a Gagnon II hearing which is a final hearing by the court which considers whether the facts of the case warrant the revocation of probation or parole. The burden of proof for the Gagnon II hearing requires proof of a violation by “a preponderance of the evidence, and not the more stringent requirement of “beyond a reasonable doubt, used in a criminal trial. If the defendant is found in violation of his probation or parole, a determination is then made as to whether to recommit him to incarceration or to resort to alternative sentencing measures, balancing such factors as the protection of society and the ultimate rehabilitation of the defendant.
The attorneys at Tanner Law Offices can assist you or your loved ones in protecting your rights with regard to allegations of probation violations. Please contact our office at 717-731-8114 to schedule a consultation to discuss the specifics of your case.