Revocation of parole, probation, or extended supervision

A person under supervised release who is accused of violating a rule or condition of supervised release may waive his or her right to a hearing; in that case, DOC determines whether revocation is warranted and, if revocation is warranted, the period of incarceration that may be appropriate for the violation. Current law provides that, if after a hearing before the Division of Hearings and Appeals in the Department of Administration, the person is found to have committed a violation, the person's supervised release may be revoked. Upon revocation, the person may be returned to a correctional facility for a period of time up to the time remaining on his or her sentence; if the person is a probationer, the person may be returned to court for sentencing or, if the original sentence was imposed but stayed, may be required to serve his or her original sentence. A revocation decision by the Division of Hearings and Appeals may be appealed by the person or, if revocation is denied, by DOC.

Under current law, the person has a right to due process with respect to the revocation hearing, but the rules of evidence that apply to court proceedings do not necessarily apply to revocation hearings. Also under current law, a person who has been charged with committing a felony is entitled to a preliminary examination at which the court must determine whether there is probable cause to believe that the defendant committed a felony. Witness testimony may be taken at both revocation hearings and preliminary examinations.

This bill changes aspects of the revocation proceedings for persons who are under supervised release for a felony and who violate a condition of supervised release by committing a new crime, violating a rule or condition that prohibits contact with a victim or witness, violating a rule or condition that prohibits contact with a minor if the person is serving a sentence for a crime against a child, or absconding from supervision for more than 180 days (supervised felon).

Under the bill, if DOC alleges that a supervised felon committed one or more of the listed violations, DOC is required to take physical custody of the supervised felon and keep the person in its physical custody until any revocation issues are resolved. If DOC opts not to seek revocation of a supervised felon's release, DOC must notify the district attorney for the county where the felon was convicted of the alleged violation and its decision not to seek revocation. Under the bill, the district attorney has 30 days to initiate revocation proceedings against the supervised felon.

The bill requires DOC to cooperate with a district attorney who initiates revocation proceedings. Under the bill, if a supervised felon is found to have committed the violation, he or she must be reincarcerated for not less than half of the time remaining on his or her sentence or, in the case of a person serving a life term, for not less than five years. If a supervised felon was on probation, the bill requires the person to be returned to court for sentencing or to be required to serve the sentence that had been stayed.

The bill also makes changes to revocation proceedings that apply to supervised felons and to persons who are under supervised release for a misdemeanor or for a felony but whose alleged violations are not among those listed for supervised felons.

Under the bill, the standard of proof for determining whether a person committed a violation of a rule or condition of supervised release is a preponderance of evidence.

The bill limits review of revocation proceedings to determining whether DOC or, in the case of a supervised felon, DOC or the district attorney, met that burden of proof.

The bill also provides that, if DOC or, in the case of a supervised felon, DOC or the district attorney, initiates proceedings to revoke a person's supervised release because the person has committed a new felony, the felony victim's testimony from the preliminary examination regarding the new felony is admissible at the hearing on revocation of extended supervision. The bill further provides that, if the victim testified at a preliminary examination regarding the felony and if a record of the testimony is available, a party to the revocation hearing may not subpoena the victim to appear at the revocation hearing unless that party shows good cause for requiring the victim's appearance.