Massachusetts Sentencing Commission Advisory Sentencing Guidelines [published April 26, 2019]
Principle No. 14 The judge should ensure a timely and proportional response to proven violations of probation. A probationer should be held accountable, through administrative or judicial proceedings, for proven violations of the terms or conditions of probation.
Commentary
There is broad consensus (if not universal agreement) among social scientists and criminal justice experts that systemic responses to probation violations should be swift, certain, and consistent.4 A swift and certain response to violations of probation is one of ten best practice principles developed by the National Center for State Courts. It is also a bedrock principle of the Massachusetts HOPE/MORR model of probation supervision.
A timely response to a probation violation not only ensures accountability but also reinforces to a probationer that the sanction flows from the probationer’s misconduct (a cause and effect relationship). Sanctions may be judicially or administratively imposed. When a judicial sanction is sought, through a violation proceeding, due process requires notice, appointment of counsel, and an opportunity to prepare a defense. Morrissey v. Brewer, 408 U.S. 471, 489 (1972); Commonwealth v. Durling, 407 Mass. 108 (1990). Although there is some delay before a final adjudication of a violation based on due process considerations, the Probation Service can minimize the time involved by immediately filing a notice of surrender to initiate violation proceedings.
Best practice research also supports the principle that the sanction for a violation of probation should be proportional to the violation and reflect the probationer’s overall performance while on probation. As reflected in Best Practice Principle No. 13, supra, revocation of probation and the imposition of a committed sentence should be used sparingly insofar as there is generally no positive impact on reducing recidivism by incarceration. Although sanctions should be proportional to the violation and revocation should be considered as a last resort, the Working Group recognizes that probationers who repeatedly violate the terms and conditions of probation will appropriately be sanctioned more severely than will a first-time violator. Repeated violations reflect a lack of rehabilitation on the probationer’s part and “pose an obvious threat to the public welfare.” Durling, 407 Mass. at 115. The sanction for a violation lies in the sound discretion of the judge and may range from restoring the defendant to probation with a verbal warning, the addition of conditions or restrictions, extending the probationary term, placing the probationer in a higher form of monitoring such as community corrections, or some combination of intermediate sanctions. Revoking probation and imposing a committed sentence, particularly for an offense requiring a mandatory minimum term, may be disproportional to the nature of the violation itself (e.g., imposing a twenty-year sentence for armed home invasion based on a single positive drug test) and should therefore be viewed as a last resort.
4 APPA & NCSC, Effective Responses to Offender Behavior: Lessons Learned for Probation and Parole Supervision (2013); Pew Charitable Trs., Pew Ctr. on the States, Arming the Courts with Research: 10 Evidence-Based Sentencing Initiatives to Control Crime and Reduce Costs (2009); Angela Hawken &Mark Kleiman, Managing Drug Involved Probationers with Swift and Certain Sanctions: Evaluating Hawaii’s HOPE (report funded by U.S. Dep’t of Justice, December 2009); Amy Solomon, Does Parole Supervision Work? Perspectives: J. of the APPA 26 (2006); Raymond Paternoster, Decisions to Participate in and Desist from Four Types of Common Delinquency: Deterrence and the Rational Choice Perspective, 23 L. &Soc’y Rev. 7 (1989).
