When a defendant is placed on probation or parole in Pennsylvania, this will be better than the standard alternative of incarceration. Granted, a defendant may have to serve a period of time in jail or prison prior to being paroled or serving a period of probation, known as a probation "tail," but in arguably all instances, any time at home and with family while on probation or parole will be better than being incarcerated.
The issue that arises is when a person is accused of violating his or her probation or parole. When this happens, the defendant can actually find him or herself in a more tenuous position than when initially sentenced. The reason being that the defendant's back judge (the judge who sentenced the defendant) can regard a violation of probation or parole as the defendant's inability to appreciate the "opportunity" that was given to him or her by avoiding time in custody altogether, or by serving less time in custody because of the probation or parole that was granted as part of the initial sentence.
If a defendant finds him or herself accused of violating probation or parole, and if the defendant is in fact found to be in violation, the consequences can be more severe than when the defendant first faced sentencing. For this reason and others, it is critical to understand how probation and parole violations in Pennsylvania are addressed, and also what rights a person has who is facing probation or parole revocation proceedings.
Constitutional Rights vs. Parole and Probation
Ultimately, a parolee's liberty is not as complete as the average citizen's. Its termination, however, requires some protection under the Fourteenth Amendment of the United States Constitution, and the United States Supreme Court's holding in Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), sets forth a minimum requirement of due process at parole revocation hearing, both state and county. These due process requirements also apply to probation revocation hearings as addressed in the case of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct., 1756, 36 L.Ed.2d 656 (1973), for which violation of probation hearing have become known - Gagnon hearings.
What is a Gagnon I hearing in Pennsylvania?
A probationer or parolee who has violated probation or parole is entitled to two hearings. The first hearing determines whether there is probable cause that the violation occurred and puts the individual on notice of the charges. This hearing is called the Gagnon I hearing, which is also known as the "detainer" hearing because the court will also decide whether a detainer should be "lodged" (issued) to keep a defendant in custody pending the second hearing, or whether the detainer should "remain in place" (when the detainer was already issued), meaning that the defendant would remain in custody because he or she was detained at an earlier time.
Will I be detained if I violated my probation or parole?
A defendant may unfortunately find him or herself in custody at the time of the Gagnon I hearing for two general reasons: 1) the defendant was arrested for new criminal charges and the defendant's probation officer lodged a detainer on him or her to keep the defendant in custody until the Gagnon I hearing (and in the view of the probation officer generally, until the time of the second hearing); or 2) the defendant is accused of a technical violation (for example, a failed drug screen, missed appointment with the probation officer, failure to attend drug and/or alcohol treatment, failure to pay fines or court costs, or any other condition as imposed by the sentencing judge or the probation officer him or herself) and the probation officer takes the defendant into custody either at the probation department or in the community.
What is a Gagnon II hearing in Pennsylvania?
The second hearing determines whether sufficient facts exist to justify revocation. This hearing is called the Gagnon II hearing, which is also known as the violation of probation hearing, or the "VOP" hearing. The Gagnon II hearing will, in most instances, take place before the judge who sentenced the defendant (the "back judge," because the defendant knows faces his or her "back" time, which is the time remaining on the sentence, in addition to other potential negative consequences.)
What rights do I have in a violation of probation / parole case in Pennsylvania?
Due process requires a speedy revocation hearing; a preliminary hearing to establish if probable cause exists (the Gagnon I hearing); timely written notice; disclosure of evidence against the parolee; an opportunity to be heard and present witnesses; the right to cross-examine; a neutral and detached hearing body such as the Parole Board; and a written statement by the fact finders as to the evidence they relied on and the reasons for revoking parole or probation.
What happens at a Gagnon II hearing?
The Gagnon II hearing entails two decisions: 1) a consideration of whether the facts determined warrant revocation. Only if it is determined that the parolee or probationer did violate the conditions does the second question arise: 2) Should the parolee or probationer be recommitted to prison or should other steps be taken to protect society and improve the person's chances of rehabilitation?
What is the burden of proof in a Gagnon II hearing?
The burden of proof is less stringent in a Gagnon II hearing than it is in criminal trials. At a revocation hearing, the Commonwealth of Pennsylvania, generally through the District Attorney's Office of the applicable county, need only prove a violation of probation by a "preponderance of the evidence." In a criminal trial, the burden of proof is "beyond a reasonable doubt." There is a major difference between the two burdens, and a person accused of violating his or her probation or parole is in a much weaker position from the standpoint of whether the Commonwealth of Pennsylvania can meet its burden of proof against the accused.
The focus of the Gagnon II hearing, even when the violation entails a subsequent arrest, is whether the conduct of the individual indicates that the probation has proven to be (or continues to be) an effective vehicle to accomplish rehabilitation and a sufficient deterrent against future anti-social conduct.
Can probation be revoked because I was arrested?
Probation may not be revoked solely on the basis of an arrest and the waiver of the Gagnon I hearing. There must be a Gagnon II hearing.
Do I need to be given notice of my probation violation prior to a VOP hearing?
A defendant is denied due process at a revocation hearing if he had not been given written notice both of the alleged violation and of the hearing. If a defendant is notified of one violation of probation and is recommitted for several violations, it is not error provided the violation of which the defendant was notified was among those violations.
Failure to object to a lack of written notice of the revocation hearing and lack of adequate time to prepare for it constitutes a waiver of the right to timely written notice.
Does a Gagnon I hearing always have to be scheduled before the Gagnon II hearing?
It is a violation of due process to proceed to a final revocation hearing without first holding a preliminary (probable cause) hearing (Gagnon I). It should be noted, however, that although not often used in criminal practice, when a parolee or probationer is arrested for a new offense and held for court following a preliminary hearing for that new offense, the preliminary hearing meets the due process requirements of the probable cause hearing for revocation.
Pennsylvania Attorney to Help with Gagnon Hearings | Philadelphia Criminal Defense Attorney
Probation or parole in Pennsylvania can be an arguable blessing or a curse. It can be a blessing if it allows a person to remain at home and return home sooner than would be the case if the person was sentenced to incarceration or remained in jail or prison longer than if paroled. Probation or parole can be a curse when a person is accused of violating, and at times, people on probation or parole may be doing everything that is expected of them, and but for a difficult probation officer, or unreasonable expectations, a person can finds themselves facing a situation that is not deserved.
Whether you or a loved one has walked a straight line or has made a mistake and faces a probation or parole issue, attorney Joseph D. Lento knows how to defend a violation of probation or parole because not only he fought in the trenches for a decade for clients facing such burdens, he worked as a probation officer for years while attending law school at night. He knows the often unreasonable world of probation firsthand, and he uses knows what a back judge may or may not be receptive to in fashioning a better alternative to probation or parole that may otherwise be revoked.
If you or a loved one is facing a Gagnon hearing in Pennsylvania, including, but not limited to, Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, and Northampton County, contact attorney Joseph D. Lento today to learn how he can help.