Probation and Parole

Is Bail Reform Reducing Jail Populations to the Greatest Extent Possible?

November 12, 2018 | By James S. Friedman, LLC

Bail Reform went into effect in New Jersey almost two years ago. Its stated goals included, among other things, a reduction in jail populations. At the heart of this issue was the implementation of a screening tool known as a Public Safety Assessment, or “PSA”, which is prepared by Pre-Trial Services. The PSA is basically a scoresheet that evaluates each defendant to determine what, if any, terms of pre-trial release should be imposed by the Court, or if the defendant should be remanded to a county jail. The PSA is used on a State-wide basis. In other words, it is used in all counties for all defendants in the Superior Court.

I have always believed that the PSA is problematic because of its “one-size-fits-all” approach to the State’s defendant population. I also believe that this concern is supported by the fact that the algorithm underlying the PSA does not account for all individual variations that may exist between and among all defendants. Given that we have now had some experience with bail reform and the PSA, this may be a good time to take a hard look at the new pre-trial release procedures to see how well they work within the larger context of our State’s criminal justice system.

We can all agree that every jurisdiction wants to reduce its jail population. Toward that end, New Jersey has not been the only state to adopt some sort of bail reform. States all over the country are doing the same thing for the same reasons. This is not surprising given the national experience over the last several decades. We know that inmate populations have been rising nationally for decades. In 1970, daily local jail populations were at about 157,000 inmates. By 2015, that number exceeded 700,000. Close to 11,000,000 people are admitted into jails annually in this country. Given these staggering numbers, coupled with the costs associated with building and maintaining jails as well as the societal costs stemming from incarceration, we need to constantly ask if enough is being done to reduce our jail populations to the lowest possible levels. Continue reading ›

Commonwealth v. Eldred – Should Courts View Drug Addiction as a Disease Requiring Treatment, or Simply Wrongful Conduct Warranting Punishment?

July 3, 2018 | By James S. Friedman, LLC

What is drug addiction? How is it to be defined? Is it some sort of disease, or just another form of illegal conduct? Commonwealth v. Eldred, a case now before the Massachusetts Supreme Judicial Court, may soon provide guidance on these issues. This case is important for any criminal attorney who represents addicts, particularly those who are placed on probation and then violate the terms and conditions of their supervision with, as frequently happens, a positive urine screen. It is therefore worth a comment, even though it is from another jurisdiction.

We have all been down this road many times. A client has a relatively low-level drug charge, which is typically the latest in a series of minor drug offenses or other petty offenses geared toward obtaining money to buy drugs. The client’s criminal history and behavior are consistent with addiction. They plead guilty and are placed on probation (or, in New Jersey, accepted into drug court, which is a form of probation). One of the terms or conditions of their probation is that they remain drug-free. In fact, this is always a standard term of probation in these cases. The client subsequently reports to their probation officer and are asked to, among other things, provide a urine sample. The sample tests positive and a violation is filed, with the result that the client is now facing the possibility of prison time.

Julie Eldred, a defendant with a relatively long drug history, was sentenced to probation for stealing jewelry to obtain money to purchase narcotics. Her first urine test – taken only days after her probationary term began – was positive, and she was briefly jailed as a penalty. In Ms. Eldred’s case, the Massachusetts Supreme Judicial Court will determine whether Ms. Eldred’s relapse warranted the imposition of a criminal sanction. In doing do, the Court will opine on whether addiction is a mental disease that inhibits the addict’s ability to avoid using illegal substances, or some other kind of condition that will respond simply and directly to rewards and punishments. Continue reading ›

State v. Mosley – State’s Use of Hearsay Evidence at Probation Violation Hearings

March 9, 2018 | By James S. Friedman, LLC

Most defendants who are facing jail time are very satisfied with a probationary sentence in lieu of incarceration. However, defendants sentenced to probation do not always realize that the sentence comes with a list of terms and conditions with which they must comply during their period of supervision. Some terms and conditions are fairly standard. These typically include remaining arrest-free, maintaining employment, going to school, and remaining drug and alcohol free. The sentencing judge can also impose more case-specific or defendant-specific terms and conditions that can be very creative, and are designed to meet the unique needs of the matter at hand.

The failure to comply with the terms and conditions can result in the filing of a violation by the probation officer responsible for the case. The Court will then schedule a hearing on the violation. If the violation is sustained, the Court could impose penalties that range from a lengthening of the probationary term to a sentence in state prison. Under current law, the maximum term of probation in New Jersey is 60 months, or five years. Certain defendants may be eligible for early termination if they can show compliance with all conditions and requirements. Defendants must always remember that being on probation is not always easy, and the likelihood of a violation typically increases with the length of the probationary term. Put somewhat differently, defendants who are placed on probation for long periods of time are at greater risk of facing a violation.

State v. Mosley, decided by the New Jersey Supreme Court on March 6, 2017, reminds us that probation violation hearings are not criminal trials. The State bears the burden of proving the violation, but the standard of proof is much lower than what is required at trial. This is largely because probation violation hearings are not viewed as part of a criminal prosecution, but as part of the corrections process. Continue reading ›

Probation Problems and Solutions

September 15, 2017 | By James S. Friedman, LLC

Under current New Jersey law, the maximum term of probation is five years. Experience indicates that most defendants are typically placed on probationary terms that can run from one to three years. Many defendants facing jail time view probation as a gift and, oftentimes, it is. However, probation comes with terms and conditions, and the failure to comply can lead to a violation and jail time. Some judges have an unofficial “one free bite” rule – the first violation leads to a reading of the riot act, placement on what is referred to as “strict compliance”, or an extension of the probationary term, in lieu of a prison sentence as a sanction for the violation. Other judges are less generous and simply incarcerate the defendant once the violation is sustained.

There is a definite correlation between the length of the probationary term and the likelihood of a violation. Put somewhat differently, people who are on probation for relatively long terms are at greater risk for violating. This is because it can be difficult to comply with the terms, conditions and restrictions of probation for long periods of time. Thus, people placed on terms of, for example, four or five years, are often characterized as “set up for failure”. As to this issue, there are standard terms and conditions of probation (remaining gainfully and legally employed, staying in school, remaining drug-free, etc.), and special conditions that a judge may craft for a particular case. As to the latter, one New Jersey judge that I regularly appeared before prior to his retirement required probationers to not enter disreputable places or associate with disreputable people. I never understood what that meant, until one of my clients was arrested in a go-go bar during a raid. The client was not engaged in any illegal activity – he was just sitting and having a drink. However, he ended up receiving a sanction because he violated that term or condition. Indeed, judges have considerable latitude in crafting unique terms and conditions, and this must be factored into assessing the likelihood of success. This is particularly problematic when a judge imposes a term or condition that simply cannot be complied with because of the defendant’s circumstances. Another problem is that a considerable amount of the funds that run probation systems come from fines and fees paid by probationers. However, many of these people are impoverished and cannot afford even modest payments, sometimes resulting in a violation for failure to pay required assessments.

The concept underlying probation is that some defendant are simply better off in a community corrections setting as opposed to a county jail or prison. Further, from an institutional and/or management perspective, probation is intended to save scarce prison resources for the worst offenders. However, the fact is that many defendants end up violating at some point during their probationary term, and are incarcerated. As a result, probation can actually add to the country’s overburdened jail and prison systems. Continue reading ›