New Felony Charge While on Parole

By the end of 2021, approximately 3,745,000 adults in the U.S. were under community supervision (parole or probation). This figure indicates that 1 in 69 adult U.S. residents is under community supervision.

A parole violation can cost convicted individuals their chance to reenter society earlier than their original sentence. Getting a new felony charge could extend inmates’ stay in correctional facilities.

However, not all parole violations mean prolonged incarceration. 

How does the U.S. parole system work? What happens when a parolee gets arrested for suspicion of a parole violation? What are the penalties if a parolee does not comply with their parole terms?

LookUpInmate.org offers detailed information regarding parole violations in the country.

This article also examines types of parole violations, the process, and what happens when parolees commit new criminal offenses.

Overview

Say a parole officer (P.O.) has a reasonable cause to think a parolee under a Department of Corrections (DOC) supervision engaged in criminal activity or violated any release conditions.

The P.O. usually confers the case with a supervisor to get an arrest warrant. 

Typically, the violator cannot post bail while the warrant is in effect and their hearing is underway. Procedures from state to state may be similar, but specific processes may differ.

For example, the New York State (NYS) usually serves the alleged violator (parolee) a “Notice of Violation” within three days of executing the warrant.

The Notice of Violation outlines the hearing process and the parolee’s rights during revocation.

New York State parolees may also get a copy of the Violation of Release report listing the violation charges.

On the other hand, for out-of-state cases, the parolee should be served within five days after becoming subject to the warrant. 

They may waive or attend the preliminary hearing. Suppose the parolee decides to go through with the hearing. In that case, the court will request their attendance within 15 days following the execution of the parole warrant.

Meanwhile, parolees who waive their preliminary hearing will still have to attend the final hearing within 90 days of the waiver.

When Can a Parolee Be Arrested?

Every citizen, even convicted individuals, including those on parole or probation, has the right to due process whenever the state takes measures to interfere with one’s life, liberty, and property. 

So, you don’t automatically have to serve prison or jail time for a parole or probation violation. 

However, you may still get detained hold before a parole hearing. This incident usually happens when there’s an immediate need to do so, especially if the parolee is a risk to public safety.

Types of Violations

A parolee can violate the conditions of parole in various ways, which could result in their return to jail or prison. 

Some parole authorities impose minimal penalties for minor or technical violations, like breaking curfew, failing a urine drug test, or not reporting to a designated parole office.

Still, a primary problem for some individuals on parole is that a minor or technical violation can still land them behind bars. 

This option can cost taxpayers and undo the progress the parolee has made. 

That’s why some officers prefer imposing stricter monitoring requirements on parolees instead of recommitting them to the corrections facilities.

Meanwhile, high-level violations, including illegal possession of firearms and threatening victims, usually lead to immediate parole revocation.

Various harmless causes can lead parolees to violate their conditions of release. For instance, parolees who use public transportation may fail to catch the bus or get caught in traffic, resulting in missed curfews or late arrival to court-ordered appointments.

The paroled individual may also fail an alcohol or drug test due to false positives, a contaminated test, or medicine or food that can trigger a positive result.

Parole officers must consider these factors when determining whether such violations justify returning a parolee to prison.

How Long Is Felony Parole in the U.S.?

In many cases, the length of parole depends upon the nature of the crime committed and the inmate’s behavior. 

That said, the average time served on parole is 19 months. However, parole may last throughout a prisoner’s life. 

What Are the Penalties for Revocation?

The court could impose various penalties if the parolee committed violations. Depending on the parole terms disobeyed, such penalties can include the following:

• Arrest warrant: The court may authorize a warrant for the parolee’s arrest.
• Fines: The parole violator can receive a fine for the violation.
• Increased parole term: The court may prolong the parolee’s time on parole. However, the court cannot extend the parole for more than the original sentence’s term.
• Revocation: The decision-maker can revoke the offender’s parole, causing them to return to prison until they complete their initial sentence.
• Criminal charges: The person who commits a new offense while on parole will likely be prosecuted for the additional crime.

Hearings and Delinquencies

These two factors are crucial to violation hearing procedures, particularly in criminal cases.

This process involves setting up hearings to examine charges and establish the guilt or innocence of parolees accused of criminal behavior. 

Preliminary Hearings

A preliminary hearing aims to determine whether probable cause exists to believe the parolee violated any of the conditions of release significantly.

In many cases, the preliminary hearing happens in a county jail near the area where the alleged offense occurred or where the parolee was detained.

Violators may seek legal representation, but preliminary hearings do not provide for an absolute right to counsel.

 Suppose the accused parolee does not plead guilty to any accusations against them.  

In that case, the respective corrections department will argue its case by presenting testimony and evidence. The DOCCS (Department of Corrections and Community Supervision) is responsible for this task in New York. 

After the hearing, the PHO (preliminary hearing officer) will decide if there’s a probable cause. Then, the alleged parole violator receives a copy of the PHO’s decision. 

Final Hearings

In cases where probable cause exists, the violation will proceed to a final hearing. 

Meanwhile, here are the two possible outcomes if no probable cause is found:

• The hearing officer orders the revocation of the arrest warrant
• The parolee returns to supervision

If the parolee gets convicted of a new misdemeanor, they are not entitled to a preliminary hearing. The matter will immediately proceed to the final hearing phase.

In New York, parole violators sentenced to a determinate or indeterminate term will have their supervision status revoked without undergoing a preliminary or final hearing.

They will also qualify as a PVNT (parole violator with a new term).

Suppose the new felony conviction entails a sentence other than state imprisonment. In that case, the state’s corrections department typically proceeds with the final hearing.

Delinquencies

A parolee may become a legally recognized delinquent for the following reasons:

• A preliminary hearing finds probable cause
• The preliminary hearing is waived
• Reasonable grounds for believing the defendant has absconded from supervision 
• The parolee committing a new crime while under supervision

Absconding is intentionally evading supervision by avoiding contact with the assigned parole office, not notifying the parole officer of an address change, and failing to regain contact with a parole officer after reasonable attempts. 

The date of delinquency marks the earliest date that a violation of release is alleged to have taken place. Also, the “declaration of delinquency” interrupts the sentence on the date of its announcement.

Final Revocation Hearings

These hearings happen within a state-set day of determining probable cause or waiving the preliminary hearing.

A parole violator has the right to have an attorney to communicate with the parole violation unit of the jurisdiction where the parolee stayed.

Usually, an administrative law judge or a parole board member does the following tasks:

• Facilitate the revocation hearing
• Administer oaths
• Consider adjournment requests
• Decide which charges are supported by a preponderance of the evidence

In New York, a parole revocation specialist (PRS) presents evidence and examines witnesses to argue the validity of the charges. 

Alleged parole violators can retain their counsel or request a legal aid or public defender to represent them at the final hearing. 

The accused parolee may submit evidence and testimony to refute or weaken the charges.

The ALJ (administrative law judge) dismisses the criminal charge if the prosecution’s evidence does not convince them. As a result, they will lift the warrant on the parolee.

If any charges are sustained, a delinquency date will be set based on the proven date of parole violation.

Afterward, the parolee’s lawyer and the PRS representing the corrections department provides recommendations regarding the disposition. 

Parolees obtain copies of the final decision after the ALJ reviews the recommendations and issues a definitive statement.

Parole Revocation Guidelines

The Supreme Court ruled that a person’s conditional liberty on parole was a form of liberty protected by the 5th and 14th Amendments’ due process clauses.

Fair and just parole revocation guidelines rely on these legal principles. 

States continue to amend their policies regarding parole violations to ensure appropriate sentencing decisions. 

For example, the State of New York developed three categories of parole violators to determine whether the violator deserves a severe punishment or treatment.

Category 1

You are a Category 1 parole violator in New York under the following circumstances:

• You received parole on a violent felony offense defined under Penal Law Section 70.02.
• Your current violations include the use, or threatened use, of a lethal or dangerous instrument, the attempted or actual infliction of bodily injury, the possession of a firearm, or threats against DOCCS personnel or peace officers.
• Your criminal record can have significant implications, especially involving a violent felony or youthful offender adjudication.  

This situation is especially relevant if such convictions or adjudications happened within the 10 years before the commission of the current offense.

Any period of time during which the parolee served time in prison does not count in calculating the 10 years preceding the act.

• The parolee committed an A-1 felony offense.

Category 2

The new conviction is for a felony other than A-1, defined by the Penal Law’s Article 220 or 221, and the sustained violation does not involve an under-supervision felony.

Also, the current sentence stems from a conviction other than Penal Law Article 220 or 221 offense not classified as a violent felony offense or a Class A felony.

Moreover, the current violation charge involves the following:

• A Rule 8 drug or marijuana charge
• Rule 11 charge
• Special conditions prohibiting alcohol consumption

Category 3

The sentence imposed on a Category 3 violator convicted of a violent felony offense is six months plus the time spent in custody.

Meanwhile, the time assessment for a violator convicted of a nonviolent felony offense is incarceration time plus three months.

 Category 2 or 3 parole violators with two prior sustained violations may receive a time assessment not to exceed 12 months upon receiving a third violation or more. 

Mitigating Circumstances Under the Regulations

Five mitigating factors can limit mandatory punishments on parole violators. These circumstances include the following: 

• The parolee is the legal guardian of a minor child and acts as the child’s primary caregiver for a minimum of 12 months or from birth or adoption before incarceration.
  If reinstated, violators have a safe residence and the resources necessary to raise the child.
• The violator has willingly returned to supervision after absconding.
• The violator has faced a new criminal charge, and the new accusation has been referred to any alternatives to the incarceration sentence.
  Note: Restoration to supervision is contingent only on completing the ATI (alternative to incarceration) program.
• The DOCCS has considered the parolee’s supervision before the conduct that led to the arrest warrant acceptable, and the violator has had a stable residence and previous employment.
• The supposed Category 2 offender has medical or psychological needs that the DOCCS cannot adequately meet.
  Authorities can reinstate the violator’s early release status for the following reasons:
• Community-based supervision programs can appropriately address the violator’s needs.
• Restoration to society would not negatively impact public safety.

What Happens if You Are Charged With a Felony in the U.S.?

A felony is any offense punishable by death or incarceration for more than one year. Felonies are high-level crimes. 

Consequently, the courts and prosecutors address felony cases differently from misdemeanor cases (charges that carry shorter sentences).

Not every step below applies to every case. In fact, many criminal cases do not reach trial. Even so, these are the typical processes that people accused of felony go through:

1. Initiating charges by complaints
2. The initial appearance
3. Preliminary hearing
4. Grand jury hearings
5. Arraignment on the indictment
6. Hearings on motions
7. The witness conference
8. Trial
9. Sentencing

What Happens if You Get New Charges While on Felony Probation?

Like in parole, a new criminal charge on probation can have severe consequences.

Probationers must also deal with demanding legal procedures if they break the court-imposed probation conditions. 

For example, failing to meet the court’s expectations may result in another trial and possible prison reentry.

Meanwhile, the original sentences of probationers who did not experience prison or jail time may be revised to include an incarceration period.

Alternatively, the court may reincarcerate probationers who served a shorter prison sentence.

Probation (and parole) violations range from minor to grave, depending on the circumstances. Probationers or parolees may commit hard-to-justify, direct offenses. 

On the other hand, many probation violations result from honest mistakes or misunderstandings between the probationers and their respective supervisors. 

For example, even missing a meeting with a probation officer at the scheduled time and place may indicate a violation of probation.

What Are the General Conditions of Probation in the U.S.?

Probation is a court-issued criminal sentence that, under prescribed constraints, allows the early release of an inmate into the community rather than confining them in jail or prison.

The conditions of probation vary depending on the type of probation. Here are the possible types of probation:

• Unsupervised probation
• Intensive probation
• Supervised probation
• Courtesy supervision
• Interstate compact

Will Your Probation Be Revoked if You’re Charged With a New Offense?

In many cases, if you are on probation for a felony and are charged with a new offense, your probation officer will file a petition to revoke your sentence.

Do You Always Go Back to Jail if You Receive New Charges While on Felony Probation?

Each state has different policies regarding jail time for probationers charged with a felony.

For example, Florida Statute 948.06 states that if a judge has reasonable cause for believing that the defendant has committed reoffense, the court may issue an arrest warrant for that person and require them to attend a first appearance hearing.

At that court session, the judge determines whether the individual should stay in jail awaiting further proceedings or whether they can be released on bail.

What Should You Do if You Are Arrested While on Probation in the U.S.?

Individuals arrested for probation violations do not usually go through a jury trial. Instead, they appear before a judge who determines whether to resentence them or allow them early release with a bond.

Depending on the severity of the new criminal offense, the probationer may have to serve the maximum sentence for the original charge.

 Even if the new charges against them prove false, an arrest during probation can trigger several repercussions.  

If you are arrested, you must inform your probation officer — usually within 48 hours. 

You should also contact a criminal defense attorney as early as possible to work on a plan to minimize the impact of new charges on your probation.

Can You Be Around a Convicted Felon While on Probation?

Suppose you know someone who has been convicted of a felony. In that case, you must not knowingly communicate or interact with that person without first getting the probation officer‘s permission.

Next Steps

Following a mandatory period of reimprisonment, the parolee is eligible for rerelease from state prison. This release may happen following a parole board’s examination.

Can an Attorney Help Stop Your Probation From Being Revoked?

State laws on parole violations differ. 

Suppose you have concerns or want to know how specific rules relate to your case. In that case, you may seek legal advice from a knowledgeable lawyer. 

A skilled criminal defense lawyer can explain the legislation and court procedures in greater detail, including the finality of parole hearing decisions. 

The attorney-client relationship secures the confidentiality of your conversation with your lawyer.

Say you cannot afford to hire a private attorney. In that case, you can seek free consultations from nonprofit legal clinics. Lastly, browsing online resources could provide helpful insights.

What You Need to Know About the Less Is More Act

The State of New York enacted the Less Is More Act (LIM) on March 1, 2022, to reform its parole system. 

Many aspects of the law still require development. However, specific provisions are already in effect, including reduced penalties for technical parole violations and higher burdens of proof.  

Who Does This Bill Impact?

The LIM Act directly affects anyone who serves an NYS-mandated sentence of community supervision and is under the watch of New York’s DOCCS or Department of Corrections and Community Supervision. 

Note that the Bill impacts life parolees and those on parole for sex crimes differently.

What Does the LIM Act Do?

Below are four primary ways the LIM Act affects the state of New York’s parole system.

Creates a Viable Pathway to Finish Parole Early Through Earned Time Credits

This effect could result in the following scenarios:

• Following the law’s implementation, parolees will be eligible for up to two years of retroactive time credits.
  
  However, any time served in prison due to a violation or having an “absconder status” will not be creditable.Say the parolee becomes incarcerated when the provision takes effect. In that case, their time will not count until their release.
• Most parolees will receive a 30-day time credit for every 30 days they spend in the community.
  
  This condition means parolees with no sustained violations for 30 days will have 30 days deducted from their sentence.In some cases, this provision could reduce a parole sentence by half.

Ends Automatic Incarceration and Detention for Certain Technical Violations

Parolees accused of technical violations will not get automatic jail time. Instead, they will receive a notice of violation (NOV) summoning them to a community court.

Meanwhile, people accused of non-technical violations and those charged with absconding and evading an NOV get a court recognizance hearing within 24 hours of arrest. This hearing determines if the individual will remain incarcerated until the violation charges are resolved.

Improves Due Process

The LIM Act also improves due process in the following ways:

• LIM guarantees the right to counsel throughout the parole revocation process and ups the standard of proof at every stage of violation proceedings.
• Suppose the presiding officers found adequate proof of violation at the preliminary hearing. In that case, the case will move to a final hearing.
• LIM mandates that these hearings occur in the community rather than inside correctional facilities.
• Anyone accused of violating parole conditions is automatically eligible for a preliminary hearing.

Sets Specific Limits on Periods of Incarceration for Technical Violation

The LIM Act also helps reduce incarceration time for technical infractions in the following ways:

• Reincarceration does not apply to the following technical violations:
  • Curfew violation
  • Alcohol or substance use (unless the offense is driving under the influence)
  • Possessing a driver’s license or driving a car with a valid permit unless prohibited explicitly by the offender’s conviction
  • Failure to advise P.O. of employment status changes
  • Failure to pay fees and surcharges
  • Failure to inform P.O. of police contact unless intended to conceal illegal activity
• For all other technical violations:
  • First and second violations: 0 days
  • Third violation: 7 days
  • Fourth violation: 15 days
  • Fifth violation or more: 30 days
• For absconding:
  • First violation: 7 days
  • Second violation: 15 days
  • Third violation: 30 days

VOP Sentencing: Real-World Example

Parolees may receive a VOP (violation of parole) for various reasons, including technical violations.

During a parole violation hearing, the decision-maker, whether a judge or a parole board member, reviews the context and nature of the violation and determines whether to remand the parolee back to prison or jail.

Here’s an example of VOP sentencing: 

John, a drunk 21-year-old college student, was arrested for breaking into an apartment and attacking its occupant. The court sentenced him to four to eight years in prison for burglary and aggravated assault charges.

After four years (John’s minimum sentence length) in state prison, the parole board granted John parole and ordered him to comply with release conditions, including abstinence from alcoholic drinks.

However, a year after his parole, John was apprehended for DUI (driving under the influence). As a result, the authorities recommitted him to state prison for six months.

John follows the rules while in the correctional facility and remains eligible for automatic parole. After a while, the board “reparoled” him and reinstated the terms of his release, including 100 hours of community service.

The Power of a VOP: Real-World Example

How consequential is a VOP charge? Once proven guilty, the parolee could have their parole revoked.

Suppose, in the example above, John violated release terms again, but this time he committed a high-level criminal offense. In that case, the board may revoke his parole and send him back to prison to serve his original sentence.

The revocation hearing aims to establish whether the parolee has violated the release conditions and, if so, whether the correctional institution should revoke or restore the individual’s discretionary or mandatory release.

If proven guilty, the individual may spend weeks, months, years, or the entire original sentence behind bars, based on the jurisdiction’s rules.

References

1. Probation and Parole in the United States, 2021
https://bjs.ojp.gov/library/publications/probation-and-parole-united-states-2021
2. Probation and Parole Requirements
https://www.prisonfellowship.org/resources/training-resources/reentry-ministry/ministry-basics/probation-and-parole-requirements/
3. Violations
https://doccs.ny.gov/community-supervision-handbook/revocation
4. Parole Revocation – A Primer
https://www.ojp.gov/ncjrs/virtual-library/abstracts/parole-revocation-primer
5. What Happens in a Felony Case
https://www.justice.gov/usao-ndil/programs/vwa-felony
6. Probation
https://www.law.cornell.edu/wex/probation
7. What are the different types of probation?
https://azcourthelp.org/faq/criminal-appeals-in-limited-jurisdiction-courts/266-i-want-to-know-about/topics/probation/52-probation-types
8. The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0948/Sections/0948.06.html
9. Communicating/Interacting with Persons Engaged in Criminal Activity and Felons (Probation and Supervised Release Conditions)
https://www.uscourts.gov/services-forms/communicating-interacting-persons-engaged-criminal-activity-felons-probation-supervised-release-conditions
10. What You Need to Know About the Less Is More Act
https://legalaidnyc.org/get-help/parole/what-you-need-to-know-about-the-less-is-more-act/
11. 28 CFR § 2.103 – Revocation hearing procedure.
https://www.law.cornell.edu/cfr/text/28/2.103