PRO-37-09-00004-P Graduated Sanctions and Violations of Probation

9/16/09 N.Y. St. Reg. PRO-37-09-00004-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 37

September 16, 2009

RULE MAKING ACTIVITIES

DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PRO-37-09-00004-P

Graduated Sanctions and Violations of Probation

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Repeal of Part 352 and addition of new Part 352 to Title 9 NYCRR.

Statutory authority:

Executive Law, art. 12, § 243

Subject:

Graduated Sanctions and Violations of Probation.

Purpose:

Ensures a more swift, certain, and timely response to violative behavior to promote greater accountability and public safety.

Substance of proposed rule (Full text is posted at the following State website:www.dpca.state.ny.us):

This proposed rule revision which repeals 9 NYCRR Part 352 and adds a new Part 352, is the primary work of the Division of Probation and Correctional Alternatives (DPCA) Violations of Probation Rule Revision Workgroup. It integrates current best supervision practices with respect to the handling of violations of probation involving criminal or family court probationers who are not in compliance with their court-ordered conditions of probation. DPCA's recommended regulatory changes revive many principles and procedures contained in a prior violation rule, in effect from 1982 to 1998, because the Workgroup believed numerous features were reflective of good probation practice and ensure greater consistency throughout the state. Other changes better clarify certain points and provide greater detail as to regulatory expectations to safeguard the public and/or victims, ensure offender accountability, and promote greater utilization of graduated sanctions where appropriate. Below is a summary highlighting noteworthy changes.

Section 352.1 Definitions

A new definitions section has been added to foster better understanding as to key operational concepts: absconder; court notification report; declaration of delinquency; graduated sanctions; reasonable cause or reasonable cause to believe that a person has violated a condition of probation; revocation; violation of probation; violation of probation petition and report.

Section 352.2 Objective

A new objective section has been added to clarify that the overall intent of the revised rule is multifaceted. Its aim is 1) to promote public safety and offender accountability through prompt and decisive action on the part of probation departments; 2) adopt uniform procedures to direct probation response to non-compliant behavior, and facilitate uniform decision-making, and 3) prioritize the use of graduated sanctions as appropriate and where available.

Section 352.3 Applicability

A new section clarifies the rule's applicability to probation violations in both family and criminal courts.

Section 352.4 Graduated and alternative sanctions

Although this is a new section, many of its provisions exist in the current rule (Section 352.1), albeit, with less specificity.

(a) Similar to the current rule Section 352.1(a), this section requires local directors to establish written policies and procedures for determining the appropriate actions to take with respect to any non-compliance with probation conditions. However, these local policies must provide for:

1. newly articulated considerations such as the probationer's history of compliance, gravity of the non-compliant behaviors, dangerousness to self/others, and the presence of victims;

2. newly articulated consideration as to which sanctions might achieve compliance without the need for formal court intervention;

3. similar in concept to current rule Section 352.1(d), the new rule requires the consideration of graduated sanctions, but requires that these sanctions be prescribed so as to be applied fairly and consistently soon after the non-compliant behavior occurs, predictably, and in proportion to the non-compliant behavior;

4. continuation of the current rule Section 352.1(e) requirement that, when a formal Violation Proceeding is being commenced, consideration be given to the viability of continuing the probation sentence with or without modification, extending the probation term, or revoking and resentencing to an irrevocable sentence. When revocation is being recommended, the department must consider proposing, where applicable, a split sentence.

Section 352.5 Procedures for non-compliant behaviors and/or technical violations in criminal courts and for all violations of probation in family courts

This is a significant new regulatory section that provides defined procedures for responding to non-compliant probationer behaviors while at the same time affording considerable local flexibility.

(a) Procedures for responding to such non-compliant behaviors are as follows:

1. Investigating the alleged non-compliance

i. when a probation officer has reasonable cause to believe a probationer has not complied with the conditions, s/he must commence an investigation;

ii. the investigation shall determine the facts and seriousness of the non-compliance.

2. The facts of the investigation shall be presented to the immediate supervisor;

3. With supervisory approval and pursuant to local policy, one of the following actions is to be taken:

i. Administrative Review. When local policy indicates that court involvement is not necessary, a meeting is held with the probation officer, the offender, and the supervisor/director to discuss the non-compliant behaviors and the probationer's progress in achieving the goals of the case plan;

ii. Judicial Reprimand and/or Modification of conditions. After an Administrative Review, the department may request a court hearing for the purposes of modifying the conditions of probation or judicial reprimand;

iii. If a conclusion is reached that a formal Violation of Probation hearing is appropriate, the Violation of Probation Petition and Report is to be prepared by the Probation Officer, approved by the supervisor and forwarded to the court with a request for a Declaration of Delinquency. The report shall be accompanied by a request for a Notice to Appear or a warrant for arrest of the probationer.

(b) Procedures for technical violations in cases of absconders are as follows:

1. A Violation of Probation Petition and Report with requests that a Declaration of Delinquency and warrant for arrest be filed to ensure greater offender accountability.

2. The probation department shall make reasonable efforts, consistent with local resources, to work with law enforcement agencies to address probation violations and warrants.

Section 352.6 Procedures for new offense violations for criminal supervision cases

This is a new regulatory section which incorporates appropriate steps to undertake and amplify procedures with respect to violations involving new criminal offenses.

(a) Procedures upon a probationer's arrest for a new offense prior to conviction are as follows:

1. Investigating the alleged non-compliance

i. when a probation officer has knowledge of a probationer's arrest, s/he must commence an investigation;

ii. the investigation shall determine the facts and seriousness of the alleged offense

2. The results of the investigation shall be presented to the immediate supervisor.

3. With supervisory approval, one of the following actions is to be taken based upon the nature of the alleged offense and the potential threat of probationer to self or community:

i. Arrest for a violation-level offense. Where any such alleged offense(s) occurred, no action shall be required, unless provided for in local policy, until such time as there is a conviction in which event, other provisions apply.

ii. Arrest for a crime. Where any alleged crime(s) occurred, the probation officer must notify the proper court(s) and provide a brief description of the alleged crimes(s) and the status of the case, no later than seven business days upon learning of an arrest from any source. Information shall be recorded in either a Court Notification Report or Violation of Probation Petition and Report. Either report may request issuance of a Notice to Appear to secure the probationer's appearance before the court. However, where the latter report is filed, it shall be accompanied by a request for a Declaration of Delinquency and either a request for a Notice to Appear or a request for a warrant.

iii. Clarified is the department's responsibility to continue to notify the court of any relevant changes in the status of the case.

(b) Procedures upon conviction of a new offense are as follows:

1. Investigating the alleged non-compliance

i. when a probation officer has knowledge of a probationer's conviction of an offense(s) which occurred during the period of probation supervision, he/she must commence an investigation;

ii. the investigation shall determine all relevant facts concerning the new conviction unless this information has been obtained in a prior investigation.

2. The facts of the investigation shall be presented to the immediate supervisor or other probation official;

3. Upon conclusion of the investigation and notification, the probation officer shall file either a Court Notification Report or a Violation of Probation Petition and Report within seven business days of the probation department's knowledge of the conviction.

i. Where the conviction is for a violation-level offense, a Court Notification Report may be filed. A copy of this report shall be retained in the official case record.

ii. Where a Violation of Probation Petition and Report is filed, it shall satisfy the requirement for court notification. Such a report shall be accompanied by a request for a Declaration of Delinquency, if not already granted and either a request for a Notice to Appear or a request for a warrant.

4. In lieu of a recommendation for formal court action, the probation officer, with supervisory approval, may initiate departmental administrative procedures. If issues presented by the conviction can be administratively resolved, the court shall be apprised of the action taken, with a recommendation to the court to allow the probation department to adjust the case administratively.

Section 352.7 Issuance and management of probation warrants and notices to appear

This new regulatory section requires local written policies and procedures which provide greater specificity governing issuance and management of probation warrants than contained in existing DPCA peace officer regulatory provisions (9 NYCRR Section 355.3(d)) and requires that such policies and procedures address notices to appear. Specifically, it requires that such policies and procedures govern the following:

1. circumstances to be considered relative to recommendations of Notices to Appear and warrants where not otherwise required by this Rule,

2. timely preparation and delivery to the appropriate court and where necessary, follow-up communication and documentation of the court's response to such requests,

3. Where the probation department is the holder of warrants involving probationer rearrests:

i. a process that ensures chronological tracking of all warrants from the request, through issuance, receipt at the department, entry into the State's Wanted/Missing Persons file system, intradepartmental chain of responsibility, execution, and as appropriate cancellation. Clarified is that such procedures comply with electronic posting of warrants required by the Division of Criminal Justice Services and issued by the National Crime Information Center;

ii. a process that ensures timely entry of warrants and removal of warrants in compliance with electronic posting requirements and updating of information in DPCA's Integrated Probation Registrant System.

4. Where other law enforcement agencies enter and hold warrants for arrest of probationers, the written policy must clearly delineate the department's responsibility as to issuance, tracking, execution, and cancellation of warrants for arrest. Such policy shall not inhibit the entering/holding agency's ability to comply with aforementioned electronic posting regulations.

Section 352.8 Supervision during a violation proceeding.

This new regulatory section clarifies existing law that requires probation supervision to be continued while a Violation of Probation proceeding is pending before the sentencing/dispositional court, as there has been confusion regarding the role of probation during these proceedings, especially when a Declaration of Delinquency has been issued by the court.

Section 352.9 Notification of court upon probationer's failure to complete alcohol or substance abuse treatment program

Although a new separate regulatory section, it reflects existing regulatory language (Section 352.1(c)) which is based upon statutory language found in Executive Law Section 257(4-a). To optimize compliance, DPCA has retained regulatory language in this area which requires prompt probation officer notification to the director of probation where a probationer ceases participation or is terminated from an alcohol or substance abuse program and subsequent probation director notification to the court within ninety days where such probationer does not resume participation in a program approved by the director.

Text of proposed rule and any required statements and analyses may be obtained from:

Linda J. Valenti, Counsel, NYS Division of Probation and Correctional Alternatives, 80 Wolf Road - Suite 501, Albany, New York 12205, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Summary of Regulatory Impact Statement

In the Statutory authority section, the Division of Probation and Correctional Alternatives (DPCA) cites Executive Law Section 243 as the statutory authority behind our agency promulgating a regulation in the area of violations of probation and graduated sanctions.

The Legislative objectives section expresses that these amendments are consistent with legislative intent that the State Director of Probation and Correctional Alternatives adopt regulations relating to critical probation functions and promote professional standards governing administration of probation services to ensure offender accountability and advance public/victim safety. Further detail is provided as to the rationale behind these regulatory changes.

The Needs and benefits section summarizes the needs served and benefits achieved by the proposed regulatory changes including but not limited to clarifying departmental responsibilities, implementing more standardized practices, incorporating model probation practices, and ensuring greater efficiency and consistency through specific requirements and general guidance. It highlights certain procedural requirements. Its aim is 1) to promote public safety and offender accountability through prompt and decisive action on the part of probation departments; 2) adopt uniform procedures to control probation response to non-compliant behavior, and facilitate uniform decision-making, and 3) prioritize the use of graduated sanctions as appropriate and where available.

In the Costs section, DPCA conveys that we do not foresee these reforms will lead to significant additional costs to local probation departments or DPCA. The reasoning behind our agency position is set forth.

Under the Local government mandates section, DPCA discusses certain aspects of the existing violation rule and the proposed rule in terms of any additional requirements and explains our justification as to particular new requirements. Additionally, this section explains that proposed changes provide local departments some flexibility and allow departments to create specific procedures that are narrowly tailored to their needs.

The Paperwork section explains that no additional State forms will be required by the proposed regulatory amendments. It further points out that the particular violation reports that the rule refers to are used currently by probation departments. This section also observes that existing DPCA rules require written policies and procedures in the area governing graduated sanctions and warrants, and the proposed changes will require probation departments to review and update such written procedures.

The Duplication section reiterates that the proposed rule does not conflict with any State or federal statute/regulation.

The Alternatives section sets forth why no rule in this area is not a viable option and the reasoning behind strengthening the existing violation of probation rule. Additionally, this section provides details as to DPCA's formation of a workgroup of state and local probation professionals and that the agency circulated two drafts to all probation departments to maximize professional input. Further, this section briefly summarizes DPCA's efforts in satisfactorily working out certain regulatory language to address an issue with respect to absconders raised by New York City Department of Probation and the Council of Probation Administrators to provide greater flexibility in this area.

The Federal standards section states that there are no federal standards governing the probation violation process.

Lastly, the Compliance schedule section concludes that DPCA believes that these regulatory changes will not prove difficult to achieve and that the regulatory amendments will take place 60 days after filing of its adoption.

Regulatory Flexibility Analysis

1. Effect of the Rule: No small business recordkeeping requirements, needed professional services, or compliance requirements will be imposed on small businesses, but the proposed rule does have a direct impact on local governments. There are 58 local probation departments in New York State and this rule applies to all of them.

2. Compliance Requirements: The proposed rule strengthens procedural requirements and improves probation practices. It should not impose significant additional requirements for local probation departments because many of these requirements already exist in law and regulations. For example, Executive Law Section 257(4-a) requires probation to notify the court under specific circumstances when a probationer ceases to participate or is unsuccessfully terminated from an alcohol or substance abuse program. Criminal Procedure Law Section 410.50 requires probation to supervise a defendant throughout the period of supervision. Current DPCA peace officer regulations require probation directors to have peace officer policies as to entry and cancellation of warrants and reciprocal notification. DPCA's existing violation rule requires, unless the court directs otherwise, court notification of conviction of a crime, significant violation, or absconder status within seven (7) business days of knowledge of such information. This rule additionally requires probation to have local written procedures as to the handling of new offense and technical violations and court notification of alleged violations and these procedures must include graduated sanctions. Further, prior to recommending a revocation of probation, such sanctions must be considered.

Also, many of the proposals are best practices and most local departments are currently implementing these practices. For example, many routinely investigate non-compliant behavior and/or any arrest to determine whether there is an alleged violation of probation, timely request declaration of delinquencies and warrants, and have implemented a graduated sanctions approach to the department's handling of non-compliant behavior prior to recommending formal court response to violations of probation. There are no current reporting requirements to the Division of Probation and Correctional Alternatives (DPCA) associated with this new rule. While the proposed rule specifies certain circumstances under which a Court Notification Report or Violation of Probation Petition and Report shall be issued and when a request for a Declaration of Delinquency, Notice to Appear, or a warrant for arrest shall be made, it also provides local departments some flexibility in this area.

Although one already existing form (Declaration of Delinquency) is expected to be completed more frequently, over 50 of the 58 local probation departments use software assisted caseload management systems that automatically create and fill-in the form using information from the case database. While this new rule requires that written local policies and procedures be adopted in the area of graduated sanctions and the issuance and management of warrants for the arrest of probationers and notices to appear, all departments already have written policies pursuant to existing DPCA regulatory requirements. New language in the area of probation supervision and the response to probationers' failure to abide by court-ordered conditions of probation are normal business activities.

3. Professional Services: No professional services are required to comply with the rule.

4. Compliance Costs: DPCA does not foresee these reforms leading to significant additional costs. The majority of local probation departments have institutionalized most of the features of our prior rule (repealed in 1998) in their local violation policies and procedures. Many of our proposed changes restore these practices to regulation. As to any anticipated costs of in-service training of staff, DPCA believes that orientation can be readily accomplished through written memoranda and supervisory oversight. Other procedural changes where necessary may require internal re-examination of probation professional job responsibilities and revision of existing violation and peace officer policies. This should be able to be accomplished without additional staff resources and through reassignment of certain staff to ensure rule compliance.

DPCA does not foresee that these regulatory reforms will lead to staffing increases or additional costs to local probation departments. Any minimal costs including staff time to revise any local procedures in this area are outweighed by the significant benefits of greater offender accountability and increased public/victim safety interests.

5. Economic and Technological Feasibility: Caseload management technology, while not required, would enhance data collection and tracking. As part of DPCA's efforts to streamline recordkeeping, avoid duplication and achieve cost savings, DPCA has supported the deployment of web-based case management software known as Caseload Explorer. Approximately 44 of the 58 local probation departments utilize or intend to utilize this software in the near future. Additionally, 13 other probation departments use similar software to achieve record-keeping cost efficiencies. These computer software systems facilitate timely generation of forms and reports, improve access to probationer specific case information and status, and assist in the department's management of warrants. The one remaining probation department is rural and its caseloads are extremely small. It uses a manual case management system and should not incur costs in connection with these regulatory revisions. This rule can be implemented using existing technology that all 58 local probation departments already have as all probation departments have access to and are required to input certain probationer specific information, including information regarding violations, into a statewide database referred to as the Integrated Probation Registrant System (I-PRS). This system is hosted by the New York State Division of Criminal Justice Services. Although the localities incur an expense for maintaining internet connectivity with this service there is no other usage costs and the proposed rule will have no impact on connectivity costs. All but one department have elected to purchase software assisted case management systems (such as Caseload Explorer) which assists with day-to-day department operations. Approximately 47 departments will have the capacity for their local case management system to electronically interface with the statewide I-PRS and automatically update I-PRS with probationer specific information. This will eliminate the double entry of data currently performed by these departments. Non-Caseload Explorer departments may elect, at local costs, to revise their software to take advantage of this DPCA supported interface or they may elect to purchase Caseload Explorer which will have that data exchange capability.

6. Minimizing Adverse Impact: DPCA prepared this new rule with the participation of local probation professionals throughout the state and circulated two drafts with opportunity for comment. Some of the recommended changes approved to minimize adverse impact were replacement of "48-hour" language regarding warrant issuance or cancellation to "comply with NCIC requirements" and elimination of the requirement for local directors to establish written procedural agreements with law enforcement agencies and courts regarding the handling of warrants. Additionally to address NYC concerns, DPCA eliminated certain language with respect to follow up action as to absconders that its department found problematic and reached agreement with NYC and COPA on replacement language that now establishes that each probation department shall make reasonable efforts, consistent with local resources, to work with law enforcement agencies to address probation violations and warrants. It is recognized that this new language takes into consideration the availability of local resources and provides sufficient flexibility in this area for departments so as not to prove burdensome.

7. Small Business and Local Government Participation: DPCA created a workgroup to initially draft a revised violation rule. This workgroup was comprised of representatives from departments across the state and various levels of staffing including: director, deputy director, supervisor, and senior probation officer. DPCA circulated two refined drafts to the members of the State Probation Commission, all probation directors/commissioners, the Council of Probation Administrators (COPA)--the statewide professional association of probation administrators which in turn, assigned it to a specific committee for review. DPCA incorporated numerous suggestions and sought to clarify several additional issues raised, providing flexibility in certain instances. Further, additional refinements were made to address certain COPA and NYC concerns and consensus reached by COPA and NYC and endorsed at a recent State Probation Commission meeting.

Rural Area Flexibility Analysis

1. Types and estimated number of rural areas:

Forty of the 57 local probation departments outside of New York City are located in rural areas and will be affected by the rule amendments.

2. Reporting, recordkeeping, and other compliance requirements, and professional services:

The proposed rule strengthens procedural requirements and improves probation practice, yet should not impose significant additional local probation costs. There are no current reporting requirements to the Division of Probation and Correctional Alternatives (DPCA) associated with this new rule. While the new rule specifies certain circumstances under which a Court Notification Report or Violation of Probation Petition and Report shall be issued and when a request for a Declaration of Delinquency, Notice to Appear, or a warrant for arrest shall be made, it also provides some flexibility in this area. Our proposed revisions are consistent with good professional practice and have been widely accepted by probation departments across the state, including rural areas.

Although one already existing form (Declaration of Delinquency) is expected to be completed more frequently, over 50 departments use software assisted caseload management systems that automatically create and fill-in the form using information from the case database. While this new rule requires more specific written local policies and procedures be adopted in the area of graduated sanctions and the issuance and management of warrants for the arrest of probationers and notices to appear, DPCA's existing rule already requires language as to graduated sanctions be included in local procedures. Further, DPCA's existing Peace Officer Rule, 9 NYCRR Part 355, already contains language as to local peace officer policies and procedures and requires among other provisions, reciprocal notification and cancellation of violation of probation warrants. The peace officer rule provides the more general framework in the area of warrants and the proposed rule addresses this with more specificity to ensure uniform practice as to the violation and warrant process. New language in the area of probation supervision and the response to probationers' failure to abide by court-ordered conditions of probation are normal business activities.

3. Costs:

As part of DPCA's efforts to streamline recordkeeping, avoid duplication and achieve cost savings, DPCA has supported the deployment of web-based case management software known as Caseload Explorer. Approximately forty-four probation departments utilize or intend to utilize this software in the near future and many rural counties benefit from this software. Additionally, thirteen other probation departments use similar software to achieve record-keeping cost efficiencies. The one remaining probation department is rural and caseloads are extremely small. It uses a manual case management system and should not incur costs in connection with these regulatory revisions.

All probation departments have access to and are required to input certain probationer specific information, including information regarding violations, into a statewide database referred to as the Integrated Probation Registrant System (I-PRS). This system is hosted by the New York State Division of Criminal Justice Services. Although the localities incur an expense for maintaining internet connectivity with this service there are no other usage costs and the proposed rule will have no impact on connectivity costs. All but one department have elected to purchase a software assisted case management system (such as Caseload Explorer) which assists with day-to-day department operations. Approximately 47 departments will have the capacity for their local case management system to electronically interface with the statewide I-PRS and automatically update I-PRS with probationer specific information. This will eliminate the double entry of data currently performed by these departments. Non-Caseload Explorer departments may elect, at local costs, to revise their software to take advantage of this DPCA supported interface or they may elect to purchase Caseload Explorer which will have that data exchange capability.

These changes denote specific requirements of effective probation supervision and the response to probationer failure to abide by court-ordered conditions. Any anticipated costs of training staff can be readily accomplished through memoranda, in-service training sessions, and supervision. Other procedural changes may require internal re-examination of probation professional job responsibilities and revision of existing violation and peace officer policies. This should be able to be accomplished without additional staff resources and through reassignment of certain staff to ensure rule compliance. DPCA does not foresee that these regulatory reforms will lead to staffing increases or additional costs to rural probation departments. Clearly, any minimal costs incurred, including staff time to revise any local procedures in this area, will be strongly outweighed by the significant benefits of increased public safety interests and offender accountability measures in rural communities.

4. Minimizing adverse impact:

DPCA does not anticipate that these regulatory amendments will have any adverse impact on rural areas.

5. Rural area participation:

These revisions were developed by a DPCA working committee comprised of agency staff and representatives from eight local probation departments including all geographic regions of the state. Rural departments and officers involving various levels of probation staff, including directors, deputy directors, probation supervisors, and senior probation officers were part of this committee. Several of the rural probation departments that were part of DPCA's Warrant and Violation Workgroup provided positive feedback on prior drafts. DPCA circulated drafts to all probation directors/commissioners, the members of the State Probation Commission, and the Council of Probation Administrators (COPA)--the statewide professional association of probation administrators. COPA also referred our proposed rule to its Program and Research Committee (PARC), which includes representatives from rural communities for review. DPCA has discussed earlier proposed regulatory changes with COPA's Executive Committee, which includes a cross-section of urban, rural, and suburban jurisdictions.

The proposed regulatory amendments incorporate many verbal and written suggestions from probation professionals, including rural entities, across the state to address problems and situations which probation departments encounter when responding to non-compliant behaviors. The proposed rule has been embraced by the majority of probation departments, which welcome the return of procedural specificity that existed in prior rule. DPCA heard from many probation professionals that this rule is not a significant departure from what departments have instituted in their practices. DPCA did not find significant differences between urban, rural, and suburban jurisdictions as to issues raised or suggestions for change.

Job Impact Statement

A job impact statement is not being submitted with these proposed regulations because it will have no adverse effect on private or public jobs or employment opportunities. The revisions are procedural in nature. They update violation of probation procedures to ensure appropriate investigative activities as well as supervisory and/or court notification occurs where there is probationer noncompliance.