Supervised Release/Parole Violation

 

When Minnesota releases a prison inmate on supervision, it means that he or she is still under sentencing but serving time outside of confinement. A releasee must comply with certain terms and conditions upon his or her release from prison. Any parole violation may result in being sent back to prison.

But before any revocation of the release conditions, due process requires that the releasee have a formal revocation hearing. Read on to understand Minnesota supervised release and conditional release law.

Table of contents

 

  1. Minnesota’s Supervised & Conditional Release Law

  2. Hearing & Release Unit

  3. Supervised Release Terms & Conditions

  4. Examples of Release Violations

  5. Parole Violation / Revocation Hearings

  6. Categories of Parole Violation

  7. Winning a Violation/Revocation Hearing

Minnesota’s Supervised & Conditional Release Law

Unlike most states, in Minnesota a governor-appointed parole board does not govern supervised release and conditional release. Thus the court system doesn’t formally use the term “parole.” The only exceptions would be for offenses with a life sentence.

Instead, Minnesota uses a determinate sentencing system for offenders not sentenced to life. Determinate sentencing means a pronounced number of months of incarceration.

Offenders serving a determinate sentence qualify for a form of supervised release based on the length of the sentence imposed. Every offender who enters a correctional facility with a defined term of confinement (basically a certain number of months) will generally know to the day when they may anticipate release.

The correctional facility will calculate that release date. This becomes the scheduled release date (SRD) for the offender. Generally the SRD is the point at which the offender has served two-thirds of a sentence. In most cases, the remaining one-third of the sentence will be a supervised release term in the community.

Certain offenses, such as DWIs and some criminal sexual conduct offenses, have a different form of release. That type of release is called conditional release. An offender subject to conditional release will have his or her SRD calculated in the same manner as other offenders. (That is, after two-thirds of the pronounced number of months.)

But the term of conditional release, unlike supervised release, will be longer than the last one-third of the term of incarceration. The length of a term of conditional release is not a function of the length of sentence imposed. Instead it is a function of the nature of the offense for which the offender was imprisoned.

Agents maintain annual progress reports for each offender so they can keep track of offenders’ conduct and rehabilitation. However, an agent cannot make a recommendation for early release unless the offender was sentenced under older sentencing guidelines. Then, the agent may recommend the inmate for early release based on performance reviews and progress results.

The supervision of an offender on either type of release, supervised or conditional, serves to ease the process of an offender’s reintegration into the community. Before an offender is released, agents put assessment plans in place. The government requires offenders to take part in various institutional programs so as to facilitate successful reintegration.

Projected release plans, needs, assessments, and recommended programs become part of the offender’s case file. Staff should submit these within 60 days of an offender’s admission to a correctional facility. The reports must address the offender’s sexual deviancy, chemical dependency, and psychological disorders.

A program review team will analyze reports for offenders whose sentences are nearing termination. They should complete this 45 to 60 days before the scheduled release date. A final review will set all the conditions that an inmate will be expected to comply with upon release.

There is not a program where good behavior will accelerate an offender’s release. But under Minnesota’s system of determinate sentencing, inappropriate behavior can result in an adjustment to an offender’s SRD.

Also, Minnesota does not sanction early discharge for offenders sentenced to determinate sentences. Some inmates may be eligible for work release privileges toward the completion of their sentences. Inmates typically perform work release in a community close to their home area.

Work release usually does not become available to an offender until an offender is within six months of the SRD and unless behavior was exemplary.

Minnesota employs agents to monitor offenders who are on supervised or conditional release. Regular contact between the agent and the offender must occur.

The agents work with the offender and sometimes their institutional caseworker as well to formulate a plan of release before the SRD. The agent’s role thereafter is to confirm that the released offender is complying with the terms and conditions of supervised release.

Agents also supervise offenders released from correctional facilities in other states. These offenders have been able to arrange a transfer of supervision from that state to Minnesota.

If an agent believes that an offender has violated one or more conditions of the terms of supervision, the agent may seek an arrest warrant from the Hearing and Release Unit of the Minnesota Department of Corrections.

The Hearings and Release Unit may then issue a warrant to have the offender taken back into custody. These decisions are discretionary and based on the facts of each case.

Minnesota’s Hearings and Release Unit

As previously mentioned, Minnesota does not currently use a parole board for offenders given a determinate sentence (the vast majority of offenders).

Following the introduction of sentencing guidelines in 1980, judges generally pronounced a specific number of months of incarceration based on a grid system. The state designed the grid to take into consideration both a person’s history and the severity of the offense.

Based on the sentence imposed, the history of the offender, and any treatment needs, the DOC commissioner will determine where an offender will serve a sentence. In addition, the commissioner, through his or her agents at the various facilities, will determine the scheduled release date (SRD) for each offender who is serving a determinate sentence. They will also determine the terms of supervision (supervised or conditional) and the expiration dates.

The SRD is calculated to occur at the point at which the offender has served the first two-thirds of his or her sentence in a correctional facility. Some cases are exceptional, such as those involving inmates released under specialized programs. But the majority of offenders are subject to the standard two-thirds/one-third release calculation.

The closest Minnesota entity to a parole board is the Hearing and Release Unit. The HRU works with agents in collecting information and making decisions concerning the supervision of an inmate following release.

The HRU has a number of hearing officers responsible for determining if a violation of a condition of release has occurred. They also determine what the appropriate disposition for an individual offender should be. These hearing officers are also assigned to determine the merits and disposition of many violations alleged to have occurred within a DOC facility.

The DOC doesn’t require HRU hearing officers to be attorneys, but they are individuals with extensive experience in the field of corrections. Those hearing officers are supervised by the executive officer of the HRU, who is appointed by the commissioner of corrections.

The HRU executive officer hears appeals from a decision of a hearing officer. Appeals are subject to a strict timeline. Only after an appeal to the executive officer may an offender seek review of an adverse decision. These reviews occur in district court.

Common Minnesota Supervised Release Terms & Conditions

Here we list some common terms and conditions required of offenders on supervised or conditional release. (It’s important to note that some of these restrictions are offense specific. They aren’t general release conditions imposed on all offenders, but are only prescribed for certain offenses.)

  • A requirement to live within defined areas and not change addresses without the permission of your supervising agent

  • Report any contact with law enforcement within a narrow period of time

  • Be subject to conditions associated with specific offenses. For instance, restrictions that prohibit association with gang members, accessing the internet, cell phone use, or using weapons.

  • Be subject to a search from a police officer at any time, with or without probable cause or a Minnesota search warrant

  • Registering with local authorities. (This usually applies to people convicted of certain criminal sexual conduct crimes.)

  • Avoiding contact with victims, if your offense involved an act of violence. (This may include victims of past offenses for which the offender has completed a sentence.)

  • Be subject to electronic monitoring for alcohol usage

  • Be subject to GPS tracking

  • Being subject to random testing for drugs and alcohol

  • Remain in contact with the supervising agent and respond to the agent’s texts and calls

Minnesota prohibits offenders under supervision from violating any other laws. Even if no criminal conviction is sustained for a new charge, the HRU may conduct a violation hearing. It may return the offender to a correctional facility if the hearing officer finds a violation.

Parole Violation Example

James is on supervised release. One of the conditions is that he shouldn’t violate any laws. James gets arrested for driving without a valid license. The jury finds him not guilty at trial because the prosecution couldn’t prove the case beyond a reasonable doubt.

Examples of Release Violations in Minnesota

  • Failure to submit to mandatory drug and alcohol testing

  • Curfew violation

  • Threatening behavior

  • Failure to report to an agent as scheduled

  • Failure to attend anger management classes

  • Being arrested for a new offense (even a petty misdemeanor)

  • Failure to report to the supervising agent that the offender had contact with law enforcement

  • Violating driver’s license restrictions by operating a vehicle without an Ignition Interlock device or breathalyzer

  • Failure to perform community service

  • Failure to attend ordered therapy, chemical dependency treatment, or group meetings

  • Owning or carrying a weapon, or having weapons in a residence

  • Associating with certain identified or other prohibited persons

  • Leaving the geographical areas defined by the authorities

  • Failure to maintain status as a student, or complete an educational program

Minnesota Parole Violation or Revocation Hearings

Before the DOC sends an offender back to a correctional facility, he or she is entitled to legal due process. This is also true additional consequences as a result of an alleged violation. An offender has the right to deny the violation(s) and to a hearing. This includes the right to hear the evidence presented and examine the agent presenting the violation. On some occasions, an offender may be able to present witnesses.

Usually the government arrests an offender or orders him or her to surrender to law enforcement. Next the HRU schedules a hearing. These hearings take place in a correctional facility, either in the community where the alleged violation occurred or in the county off the offender’s supervision.

A hearing officer must conduct the hearing within a reasonable time. This is usually within a few business days of the offender’s detention for the alleged violation. In a supervised release or conditional release revocation hearing, offenders have the right to a Minnesota criminal defense attorney. They also have a right to a notice of the alleged violation and the disclosure of adverse evidence. They can cross-examine and confront witnesses (though this right is limited). An offender can answer questions and make statements. At the end, a written decision explains the outcome of the hearing.

Categories of Parole Violation

Issues concerning release violations have centered around two types:

  1. Violators who return to prison due to a technical violation

  2. Those who return due to a conviction for a new crime

A technical violation primarily refers to criminality or misbehavior by an offender. This may include new criminal offenses that have not resulted in a conviction. Convictions for a new offense, which may or may not carry a prison sentence, are more serious violations of an offender’s release conditions. The standard of proof in release violation cases is not as high as required in criminal trials.  Thus enough proof that an offender’s criminal act poses a risk to public safety might exist for purposes of a supervised or conditional release revocation hearing, but not for a new criminal conviction.

Minnesota Rules, Chapter 2940 provides a detailed look at technical violations, highlighting several categories of violations. These categories determine and establish authorization for an offender to return to prison or have a release plan restructured based on the severity of a violation. Here are the categories:

Violations Requiring Restructure

A supervising agent can make a request to the DOC Hearings and Release Unit (HRU) to have an offender’s release conditions restructured.

Offenders may also request the modification of special or standard conditions of their release. They may do this either in a hearing or to their agent. The HRU will review the request for a restructure of conditions either before or during the hearing. It will decide to deny or impose some form of revised conditions or intermediate sanctions.

Violations Warranting Revocation

A Level I or II release violation involving aggravating factors can cause revocation. If the DOC revokes the release, the offender can return for a period of prison time, inclusive of time spent in jail as a result of the violation. The offender then receives a prospective or planned release date (PRD). A PRD does not have the same degree of certainty as an SRD, the scheduled release date.

Misdemeanor or Gross Misdemeanor Convictions

Misdemeanor convictions are Severity Level II violations. Without aggravating factors, the disposition for such a violation is to modify the conditions of release. Gross misdemeanor convictions are Level III violations. They may be punishable by release revocation unless mitigating factors exist. When aggravating factors are present, the offender may return for a substantial period.

Conditions Requiring a Form of Treatment

Failure to complete required treatment (such as chemical dependency or sex offender treatment) may result in a return to prison. Treatment within the institution may take many months, if not years, to complete.

Felony Convictions

Item C of Minnesota Rules, Part 2940.3800 authorizes an offender’s imprisonment for a period of six months up to his or her sentence for a felony conviction. A felony conviction is a Level IV violation. The disposition is to revoke the offender’s release for 150 days if there are no significant or multiple mitigating factors.

Threat to Public Safety

Item D of Minnesota Rules, Part 2940.3800 requires a finding of repeated release violations or risk to public safety. If found to have violated release, an offender may return to prison. This depends on the type of violation, time remaining to be served, and individual needs. The DOC classifies the category of an offender being unamenable to supervision or a threat to public safety as Severity Level IV violations. The pre­sumptive disposition is to revoke the offender’s release for 150 days.

Winning a Violation/Revocation Hearing

An offender on supervised or conditional release in Minnesota has the right to a criminal defense attorney. They may call witnesses, present their own evidence, and challenge the state’s evidence. What’s more, the hearing officer may require the offender’s agent to testify about the offender’s success while on release. This might happen even after the agent testifies about an offender’s alleged failures. Depending on the specific facts of the case, the agent may recommend that the offender return to prison or remain on release.

Some of the evidentiary procedures in parole revocation hearings are more relaxed than in criminal trials. Some pieces of evidence that a criminal trial would exclude may be used in a release violation hearing. This is known as hearsay evidence. Letters, notes, and affidavits are examples.

Also, the burden of proof in release revocation hearings is a much lower standard that is required in criminal cases. Release hearings require a “preponderance of the evidence.” This means that the test for the hearing officer is whether it is more likely than not that the offender violated the conditions of release.

The reason for requiring a lesser burden of proof is that supervised release is an extension of incarceration, not an equivalent to freedom. In essence, offenders on supervised or conditional release do not get the same level of protection as people with no criminal convictions. This is why it’s critical to have an experienced Minnesota lawyer. At Ringstrom Law, we know how to fight these release violation allegations aggressively.

Some of the most common defense strategies for violation cases are

  • An explanation of the circumstances that shows an innocent and reasonable alternative view

  • Showing that the person who reported the claimed violation was basing their conclusion on pre-existing biases about the offender. Alternatively, showing that the reporter simply misunderstood innocent behavior, or was mistaken in their observations.

  • Showing a violation of the offender’s due process rights. (This can override any offender wrongdoing.)

  • Demonstrating that the violation was minor or that the offender is not a danger to the public

Even in the case of a clear violation, an attorney may be able to demonstrate the offender’s sincere efforts. For example, if drug or alcohol use occurred, the offender’s efforts to deal with chemical dependency are relevant. These efforts might assist the offender in securing admission to an appropriate form of rehabilitation.

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