Year-in-Review Report (Fiscal Year 2004)
Motivational Interviewing for Probation Staff: Increasing the Readiness to Change
Year-in-Review Report (Fiscal Year 2004)
1 Pretrial diversion is an alternative to prosecution that seeks to divert certain candidates from traditional criminal justice processing into a program of community supervision administered by the pretrial services or probation office.
2 The Sentencing Reform Act (Pub. L. 95-536) created a guidelines-based determinate sentencing system, abolished parole, made probation a sentence in its own right, and created terms of supervised release that could be imposed to follow imprisonment.
3 “Minor” offenses represent convictions for offenses for which the sentence is 90 days or less imprisonment, one year or less probation, or a fine. “Major” offenses are violations that include involvement in or conviction of serious offenses (including absconding from custody), arrest on another charge, or convicted and sentenced to more than 90 days imprisonment or more than one year probation.
Evidence of Professionalism or Quackery: Measuring Practitioner Awareness of Risk/Need Factors and Effective Treatment Strategies
1 The Correctional Program Assessment Inventory (CPAI) (Gendreau & Andrews, 1994) is an evaluative assessment tool used to rate the integrity of correctional programs according to six related areas (program implementation, client pre- service assessment, characteristics of the program, characteristics of staff and practices, evaluation, and miscellaneous). Because research is mounting on the relationship between program integrity and program effectiveness (see Holsinger, 1999), the CPAI is beneficial, given that its design allows program administrators to observe the areas where improvement is needed.
Motivational Interviewing for Probation Staff: Increasing the Readiness to Change
1 This is similar to Bazemore & Terry’s (1997) treatise on viewing offenders in a dichotomy as either villains or victims. Those adopting a “tough” approach may well be influenced by the villain view while those adopting a “soft” approach may do so if they view offenders through only a victim lens. A villain lens would reduce outcomes as villains “don’t care” and “don’t want to change.” A victim lens would hold progress back since as victims, they’re not responsible and since they didn’t cause the trouble, they shouldn’t be involved in the resolution. These authors suggest adopting a third view (or lens). Since offenders will come to us as villains or victims, we need to move beyond these limiting views to see offenders with a third lens—as capable and as a resource in the process of change. This “third lens” as proposed by Bazemore & Terry corresponds with a motivational approach (middle ground) that lies between the extremes of “tough” and “soft.”
2 A good example of this sole focus is evidenced by our field’s skewed use of “risk” factors. The terms “Risk and Protective factors” came from resiliency research, started in the 1950s. Risk and protective factors were thought to be indivisible, much like the natural pairing of two eyes or two ears—they came as a pair, inseparable from each other yet complimentary to each other. One could not speak of risk factors without noting protective factors as well. However, as evidenced in our field, “risk factors” came to the forefront and now exclusively dominate, while “protective factors” are seldom mentioned—much less assessed and integrated in probation plans.
3 This contrast of power vs. force, so pertinent to which type of influence should be applied by probation staff, can also be found as a book title by David Hawkins (2002) Power vs. Force: The Hidden Determinants of Human Behavior . In this book Hawkins states, “Whereas power always results in a win-win solution, force produces win-lose situations…the way to finesse a (solution) is to seek the answer which will make all sides happy and still be practical. …Successful solutions are based on the powerful principle that resolution occurs not by attacking the negative, but by fostering the positive.” Hawkins concludes, “Only the childish proceed from the assumption that human behavior can be explained in black and white terms.” (pps. 138-139) I would contend the “either/ or” conception is similar to the “black and white terms” as noted by Hawkins.
Looking At The Law
1 61 Fed. Probation 76 (1997).
2 Pub. L. 107-273, 116 Stat 1758 (Nov. 2, 2002).
3 Pub. L. 108-21, 117 Stat. 650 (April 30, 2003).
4 See United States v. Johnson , 331 F.3d 962, 967 n.4 (D.C. Cir.2003) (Finding that the 21st Century amendment “resolved the circuit conflict by adding the words ‘Notwithstanding section 3583 of title 18’ to the supervisory release provision of § 841(b)(1)(C)…thus making it clear that the term of supervised release for a conviction under that section can exceed 3 years.”).
5 See United States v. Pratt , 239 F.3d 640, 647 n.4 (4th Cir. 2001); United States v. Good , 25 F.3d 218, 221 (4th Cir.1994); United States v. Kelly , 974 F.2d 22, 25 (5th Cir.1992).
7 503 U.S. 291 (1992) (maximum sentence that can be imposed on a juvenile is the maximum sentence that could be imposed if sentenced after application of United States Sentencing Guidelines).
10 Id. §§ 3551-3673, 28 U.S.C. §§ 991-998.
11 18 U.S.C. §§ 3564(b) & 3624(e).
12 United States v. Jeanes , 150 F.3d 483, 485 (5th Cir. 1998) (supervised release cannot run during any period of imprisonment); United States v. Joseph, 109 F.3d 34 (1st Cir. 1997) (same); United States v. Douglas , 88 F.3d 533, 534 (8th Cir. 1996) (same).
13 88 F.3d 824, 825 (9th Cir. 1996).
15 Even though prison time is not interchangeable with a term of supervised release, and tolling continues until release from excess incarceration, an offender could attempt to diminish the effect on the length of unserved supervised release by seeking a modification or early termination of her supervised release term under 18 U.S.C. § 3583(e)(1) and (2).
19 See Abimobola v. United States , 369 F. Supp.2d 249, 253 (E.D.N.Y. 2005) (“The statute…does not expressly authorize the tolling of a term of supervised release during a period of detention by immigration authorities, and such tolling would be inconsistent with other statutory provisions.”); cf. United States v. Balogun, 146 F.3d 141, 147 (2d Cir.1998) (“In light of … Congress’s express provision for a suspension of the supervised-release term in one instance without providing for a similar suspension while a defendant is excluded from the United States, …we conclude that Congress did not intend to authorize the courts to toll the supervised-release term after the defendant’s release from prison for a period during which he is deported or excluded from the United States.”); see also Catharine M. Goodwin, Legal Developments in the Imposition, Tolling, and Revocation of Supervision , 61 Fed. Probation 76, 78 (1997) (“Legal Developments”) (surmising that civil administrative detention awaiting deportation would not toll supervised release under § 3624(e).
20 Children’s Safety Act of 2005 , H.R. 3132, 109th Cong. § 511 (2005).
21 See, e.g. , Mo. Rev. Stat. §§ 632.480 to 632.513 (2005).
22 See Kansas v. Crane , 534 U.S. 407, 409 (2002); Kansas v. Hendricks , 521 U.S. 346, 361 (1997); see also Julia C. Walker, Freedom is to Confinement as Twilight is to Dusk: The Unfortunate Logic of Sexual Predator Statutes , 67 Mo. L. Rev. 993, 1003 n.74 (2002).
23 Legal Developments , 61 Fed. Probation, at 78.
24 193 F.3d 1102 (9th Cir. 1999).
25 In the event a case sentenced by a district court in the Ninth Circuit is transferred for supervision under 18 U.S.C. § 3605, Morales-Alejo would not be binding precedent for the transferee court. No case law has interpreted the deference that a transferee court must pay to a transferor court’s interpretation of federal law in the context of a § 3605 transfer. Nonetheless, all circuits interpreting similar civil transfer statutes have concluded that transferee courts are obliged to apply their own interpretation of federal law. See Temporomandibular Joint Implant Recipients v. E.I. DuPont De Nemours & Co., 97 F.3d 1050, 1055 (8th Cir. 1996) (“When analyzing questions of federal law, the transferee court should apply the law of the circuit in which it is located.”); Newton v. Thomason , 22 F.3d 1455, 1460 (9th Cir. 1994) (same); Menowitz v. Brown, 991 F.2d 36, 40-41 (2d Cir. 1993) (same); In re Korean Air Lines Disaster of September 1, 1983, 829 F.2d 1171, 1173 (D.C. Cir. 1987) (same); see also Campos v. Ticketmaster Corp., 140 F.3d 1166, 1171 n.4 (8th Cir. 1998) (the consolidated issues that the court is considering were controlled by the law of its circuit and not the law of the various circuits from which the cases were transferred). Under Federal Rule of Criminal Procedure 21, which provides for change of venue in criminal cases, the possibility that a court in another circuit will interpret federal law differently is not among the factors to be considered when ruling on a transfer motion. See Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964); United States v. Spy Factory, Inc., 951 F. Supp. 450, 455 (S.D.N.Y. 1997); C. Wright, 2 Fed. Prac. & Proc. Crim.3d § 346 (2004). This implies that the transferee forum’s interpretation of federal law should generally apply after the transfer of a criminal case. C. Wright, 2 Fed. Prac. & Proc. Crim.3d § 346; see also United States v. Barrientos, 485 F. Supp. 789, 791–93 (E.D. Pa. 1980).
26 See United States v. Williams , 369 F.3d 250, 252 (3d Cir. 2004) (The language of § 3583(d)(3) establishes that Congress “was aware that some defendants sentenced to supervised release would be deported yet [it] chose not to provide for automatic termination of supervised release when the defendant was deported.”); United States v. Ramirez-Sanchez , 338 F.3d 977, 981 (9th Cir.2003) (“Had Congress intended for deportation to terminate a term of supervised release, it could have provided so”); United States v. Brown , 54 F.3d 234, 238 (5th Cir.1995) (“If Congress intended for deportation to terminate this sentence, it could have specifically provided for such to occur. However, Congress has not done so.”).
27 April 13, 1994, Administrative Office memorandum to chief probation officers on tolling of supervision terms.
28 U.S. v. Isong , 111 F.3d 428, 429-31 (6th Cir.1997); see also U.S. v. (Mary) Isong , 111 F.3d 41, 42 (6th Cir.1997) (affirming condition of supervised release that defendant remain under supervision for three years, not including any time she is not in the country if she is deported).
29 United States v. Okoko , 365 963 (11th Cir. 2004) (“[S]upervised release is to commence immediately upon an alien defendant’s release from imprisonment. [I]ts tolling during deportation as a condition of the release would circumvent the policy underlying that provision.”); U.S. v. Juan-Manuel , 222 F.3d 480, 485-88 (8th Cir.2000) (“Congress did not intend to authorize sentencing courts to suspend a defendant’s period of supervised release upon deportation and during any period of exclusion from or unknown presence in the United States.”); U.S. v. Balogun , 146 F.3d 141, 144-47 (2d Cir.1998) (“[W]e conclude that Congress did not intend to authorize the courts to toll the supervised release term after the defendant’s release from prison for a period during which he is deported or excluded from the United States.”).
30 41 F.3d 1056 (6th Cir. 1994).
32 United States v. Scott , 362 F. Supp.2d 982, 985 (N.D. Ill. 2005).
33 See , e.g., Toby D. Slawsky, Counting the Days: When Does Community Supervision Start and Stop?, Fed. Probation 71, 73 (Sept. 1992).
34 United States v. Schmidt , 99 F.3d 315, 318 (9th Cir.1996); United States v. Morales , 45 F.3d 693, 696-97 (2d Cir.1995) (court retains jurisdiction to extend or modify as well as to revoke supervision); United States v. Barton , 26 F.3d 490, 491-92 (4th Cir.1994); United States v. Neville , 985 F.2d 992, 995 (9th Cir.1993). See also United States v. Schimmel , 950 F.2d 432, 435-6 (7th Cir.1991) (authorizing delayed revocation for probation without the issuance of a warrant, but based on notice otherwise provided to the defendant).
35 The only difference between 18 U.S.C. §§ 3563(c) and 3583(i) is that § 3583(i) allows for imposition of a further term of supervised release following a revocation sentence of imprisonment.
36 United States v. Schmidt , 99 F.3d 315 (9th Cir.1996); United States v. Throneburg , 87 F.3d 851 (6th Cir.1996); United States v. Kosth , 65 F.3d 170 (7th Cir.1995) (unpublished).
37 389 F.3d 901 (9th Cir. 2004).
38 18 U.S.C. 4210(a); see United States v. Polito , 583 F.2d 48, 54-56 (2d Cir. 1978) (sworn allegations were not required to issue a warrant for the arrest of a parolee); see also Story v. Rives, 97 F.2d 182, 188 (D.C. Cir. 1938) (distinguishing for Fourth Amendment purposes between retaking of parolee and arrest of individual charged with a crime); Jarman v. United States , 92 F.2d 309, 311 (4th Cir. 1937) (same).
39 United States v. Murguia-Oliveros , No. 04- 50612, 2005 WL 2063858 (9th Cir. Aug. 29, 2005).
40 Legal Developments , 61 Fed. Probation at 79.
41 Legal Developments cited three cases in support of the proposition that “[s]ome delayed revocation cases find no error where the ‘petition’ for revocation was filed within the term of supervision.” Id. at n.54. All of these cases, however, involved an earlier version of § 3583 and a predecessor to 3565 (18 U.S.C. § 3563 (repealed)) that did not include the present “delayed revocation” provisions requiring issuance of a warrant or summons prior to the termination of supervision. See United States v. Morales , 45 F.3d 693, 697 (2d Cir. 1995) (court issued summons seven days before supervision was due to expire; offender challenged court’s jurisdiction to conduct revocation hearing after supervision expired); United States v. Barton , 26 F.3d 490, 491-92 (4th Cir. 1994) (by filing petition for revocation within supervision term, probation officer preserved the court’s jurisdiction to conduct a revocation hearing within a reasonable time after supervision expired); United States v. Schimmel , 950 F.2d 432, 435-36 (7th Cir. 1991) (repealed 3563, which applied to probationer, allowed a court to issue a warrant at any time within the maximum allowable probation period even if the probation sentence imposed was less than the maximum).
42 See United States v. Hondras , 176 F. Supp.2d 855 (E.D. Wis. 2001) (Neither the pre-termination petition to order an arrest warrant nor order that a warrant issue satisfied the requirement that a warrant “issue” to extend a court’s jurisdiction to revoke supervised release); United States v. Crusco , No. 90 CR 945 JES, 2000 WL 776906, *2 (W.D.N.Y. June 15, 2000) (court lacked jurisdiction to revoke supervised release; neither a petition for a warrant or summons nor the judge’s signature approving the petition extends the court’s jurisdiction). See also United States v. Rivard , 127 F. Supp.2d 512, 516 n. 10 (D. Vt. 2000) (citing Crusco for the proposition that “where no summons or warrant has issued before the expiration of the supervised release period, the court does not have jurisdiction to hear claims of such violations”).
43 237 F.3d 1279 (11th Cir. 2001).
46 See United States v. A Female Juvenile , 103 F.3d 14 (5th Cir. 1996).
47 See Johnson v. United States , 529 U.S. 694, 701 (2000) (“Quite independent of the question whether the Ex Post Facto Clause bars retroactive application of § 3583(h), then, there is the question whether Congress intended such application. Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests.”).
48 368 F.3d 994 (8th Cir. 2004).
53 370 F.3d 1032 (10th Cir. 2004).
54 There is a minor difference between the exception provisions for probation and supervised release. Section 3563(e) refers to a drug test “administered in accordance with subsection (a)(5).” This variation reflects that the supervised release exception appears in the same subsection as the mandatory testing condition, whereas the probation exception does not.
55 See United States v. Tapia-Escalera , 356 F.3d 181, 188 (1st Cir. 2004) (Discussing the pre-PROTECT Act aggregation rule, rejecting the government’s contention that revocation penalties do not aggregate, but acknowledging that “Congress has altered the statute to adopt the government’s position for the future. The 2003 PROTECT Act adds to subsection (e)(3) the phrase ‘on any such revocation’ so that the statute now reads ‘a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years.’”).