The Process by Which Probation May Be Revoked - Coursework Example

?Describe the process by which probation may be revoked. How does this process differ from a criminal trial if at all? And how is it similar? The process for revoking probation varies somewhat between states, but the guidelines that are in place for federal offenders are the guidelines that are most often used. The defendants have certain rights when probation is revoked, but these rights are limited and not to the extent that they have when they are in the process of a criminal trial. The criminal trial gives the defendant the benefit of the doubt, allowing for the idea that they might be innocent of the charges. However, in a revocation hearing, guilt has been established so therefore some rights and rules of evidence are more relaxed. Even though the rights of a defendant in a criminal trial are more structured and strict than those of an offender whose probation is being revoked, the offender will always have the right to defend his or her position. In understanding the process to revoke probation, it must first and foremost be understood that without due process, probation cannot be revoked. This process is important in order to ensure that revocation is done for reasons that are valid and noteworthy and that the probation has been violated in such a way to warrant its revocation. Someone who has violated probation and will have it revoked will be afforded fewer rights than someone who has just been arrested. This does not mean they have no rights. The rights that they will be afforded is as follows: 1. Written notice of the violations before the revocation hearing 2. The right to see and hear the evidence against them. 3. The opportunity to be heard in person and to present witnesses and documentary evidence in their favor. 4. The right to confront and cross-examine the witnesses against them. 5. A hearing panel made up of neutral members. 6. A written statement by the hearing panel, including the evidence relied on and the reasons for revoking probation (Samaha 416). Revocation of probation is the result of having violated the terms of probation which may vary from person to person depending on the charges that have been levied against them. According to Sheb, there is a two step process in revoking probation on a federal charge as described in the Federal Rules of Criminal Procedure. The first step is a preliminary hearing which will allow the magistrate to assess whether or not there is probable cause to believe that a violation has occurred and that it is a just sanction to proceed with revoking the probation. The requirements for the preliminary hearing include the right to council for the defendant and that the proceeding be recorded by a court reporter. The defendant must be provided with written notice of the hearing which will include the violation with which the defendant is being charged. The defendant has the right to appear and to question any witness to his or her violation unless it is determined by the judge that the witness does not have to appear. At this point, the judge will determine whether the violation is valid and must go onto a revocation hearing, or if the charge is without validity and may be discharged (228). The next step is the revocation hearing. This hearing must be conducted within a reasonable time from the preliminary hearing and from the time of being taken into custody. This hearing can be waived by the defendant. The person is entitled to receive a written notice of this hearing, a list of evidence that is against them, notice of the right of council, and the right to make a statement and present any evidence that pertains to their innocence or mitigating circumstance. At this hearing the formal revocation can be enacted (Sheb 229). While the rights for this procedure are more relaxed than the formalized rights for a trial, the defendant still has the right to defend his position. Some of the differences between a criminal trial and a probation revocation hearing is that in a criminal trial hearsay evidence cannot be presented. In a criminal trial evidence must be submitted to very strict rules, however, in a revocation hearing evidence such as hearsay may by admitted against the defendant. The type of hearsay evidence, however, is subject to the laws of the individual state. Most often hearsay evidence is in the form of laboratory reports or documentation that might not have qualified in a criminal trial. However, hearsay that is simply the quotation of what someone else has said is not allowed in most states. In United States v. Miller (1975) the federal courts decided that hearsay evidence was valid in federal probation revocation. However, in Turner v. State (Fla App. 1974) it was determined that hearsay was not enough to revoke probation when a probation officer used as evidence that a defendant’s mother had said she didn’t know where he was where the probation officer used this as an indication that the defendant had changed addresses without reporting it. The defendant has the right to object to the revocation of his or her rights and has been afforded the tools with which to object to the action. However, it must be understood that in the eyes of the law, the offender has been found guilty and must bear the guilt with those rights. This is why some of the evidentiary rules are more relaxed. The credibility of the defendant has already been determined to be less than that of the court and his or her accusers, thus the burden of proof is not as strict on the state. The proof of guilt has been established. The privilege of probation is that the offender is given an opportunity to live a life that proves that he or she is fit to be within society, thus the burden shifts from the state to the defendant. This, of course, does not deny them rights, but the privilege of respect of innocence. The respect of innocence is no longer part of his or her experience within the legal system as he or she is guilty in the eyes of the law. Therefore, the hearings to revoke probation are conducted with this status in mind. Explain in your own words as best as you can why it is that people of color may have a different perspective on the Criminal Justice system than whites. First, it must be stated, that the American Anthropological Society has determined that there is no such thing as race in regard to science, but that race is purely a construct of culture. Therefore, the facts that support the differences that can be seen in the way that people with one color of skin are treated in comparison with those of another color of skin shows that society has yet to evolve to a state where they have an intellectual understanding of the science and biology of the human. This ignorance is a shameful display of the backward status of the American culture, as well as that of many other cultures across the world. In this instance, the statistics show that the experience of people with certain profiled skin colors is very different than the experiences of other skin colors. In researching the statistics about the experiences of African Americans, as an example, it is shown that African Americans are far more likely to be stopped for traffic violations than Caucasian Americans. According to a study done in the state of Illinois between 2004 and 2007, African Americans have 32.14% of the number of traffic violations per year even though African Americans only make up 28.48% of the driving population. This gives African American drivers in Illinois a 13% deeper chance than other divisions of race to be pulled over for a traffic violation (Weiss and Rosenbaum). For an African American driver, the odds of getting pulled over are greater than for that of any other skin color, thus suggesting that in viewing the public, police officers mentally profile certain types of individuals as being more likely to be guilty than others. This can be seen in the way that law is constructed as well. Sentencing and convictions rates are very different for African American and Hispanic offenders than that of Caucasian offenders. One example of how the law is constructed to favor one race over another can be seen in the differences between sentencing and definitions for crack cocaine and powder cocaine. Crack cocaine is associated with use in the African American community with 90% of all crack cocaine offenders being African American. Possession of 5 grams of crack cocaine will trigger an automatic 5 year minimum sentence. However, powder cocaine, which is more associated with middle and upper class Caucasian Americans, requires possession of 100 grams to trigger the same level of minimum mandatory sentencing (Spohn 243). To further this discussion, a personal experience can be related to show that the law has less sympathy for African American offenders than Caucasian offenders. There was an occasion where a young African American male was at a party with a group of mostly Caucasian young people where a good deal of alcohol was being consumed. He went into a room with a young blonde Caucasian girl with whom he had previous sexual experiences. He fondled her, but upon realizing that she was beyond a reasonable level of intoxication, he stopped and left the room. When the girl woke after passing out, she discovered her skirt was up and insisted that she had been raped. Examination showed that this had not happened and that she had not had intercourse recently. Eyewitness testimony showed that he had been in the room for a very short time, and he admitted to the story as told. This young man had a scholarship to college, was ready to go to the university and to leave in a few weeks. He told the truth to the prosecutor, but as a result was charged with misdemeanor sexual assault because he admitted having touched her before realizing how intoxicated she had become, was then given 90 days in jail, and lost his college scholarship and the hope for the future it had promised. One has to wonder if the coloration of the hair and skin and been reversed, if a blonde, blue-eyed male had been charged with having fondled a girl with darker skin if he would have lost his entire future. The problems with assumptions that are made by visual differences within the United States is further exampled in the laws that have been passed in Arizona in order to defend against illegal immigration. The idea that a person with a specific skin color must be prepared to prove citizenship over any other racial designation is a clear violation of human rights. Judging a person based upon skin color or ethnic markers and impeding them through legal means should be defined as specifically against the law, but instead this has been ratified as a way of handling a perceived problem. One must wonder how choosing to live in the United States over his or her country of origin is such a burden that it allows for the rights of legal citizens to be shadowed by the offense. The issue of racial discrimination in regard to the legal system and law enforcement is so serious as to warrant strict reorganization of the way in which law is approached. As exampled in the laws for cocaine possession, not only are personal biases affecting the way in which police officers are doing their jobs, but the law is written in such a way to weight the legal system against offenders when cultural differences can be perceived. The personal experience, while not documented as to preserve the identities of those with whom this writer is aware, shows that there is some serious pause to be taken when considering the way that African American, Hispanic, and Caucasian offenders are treated. While the research into this topic comes from numerous angles and with overwhelming evidence that there is a bias in the legal system, the issue has yet to be remedied. It is sad that in a country that is built upon the ideology of equality that equality has yet to be truly achieved, even in the legal system. It is difficult to legislate the personal biases that must be weeded out over generations, but the law should be easily fixed - the research proves the problem, it is the legislators who have failed the task. If you were to design the perfect Department of Corrections what would it be like? If you were to design the perfect prison system what would it be like? If you could devise a better way to treat inmates what would that better way be? The perfect Department of Corrections would be just that - a department that is dedicated to correcting the behavior of citizens who have not behaved in a way that is considered acceptable within the American society. The first aspect of how to change the Department of Corrections is to eliminate all supermax prisons. Supermax prisons are inhumane and deny the smallest hope of a prisoner coming out of those prisons and having enough self worth to reintegrate back into the general population. Prisoners are sent to supermax prisons, where they are given only one hour of time outside of their cells, and sometimes as little as one hour per week outside in the yard, without any type of hearing or proceeding. Where a prisoner goes to serve his or her time is determined by the prison boards, wardens, and through means outside of the legal system. One might suggest that these prisoners obviously deserve this type of treatment in regard to the types of crimes that have been committed. The problem, as has been begun to be suggested, is that there is no legal system for how and where a prisoner is incarcerated. As a result, the prisoners who go to these systems are often sent there for being problem prisoners. Problem prisoners are often those who are suffering from mental illness, their illnesses exacerbated by being in such extreme isolation. As well, prisoners without mental illness can develop conditions that leave them mentally damaged for the rest of their lives (Pollack 303). The recidivism for those who get out of supermax prisons is very high, thus negating the idea that anyone who might get out can contribute positively to society. This is how to start reforming the prison system, by eliminating the worst institutions that deny those who are on the inside a chance to ever be someone that the communities would want within their worlds. In contrast, this is exactly what correctional institutions should be working towards. Vengeance and punishment does not serve the state which is why the United States does not allow for victims of crimes to exact punishment. However, having institutions, whether they be minimum or maximum security, where the inmates come out of their experience with no better chance of succeeding within society than those who go into the prison, does society no benefit. Another problem with the prison system is that it creates a great drain on the resources from which financing of the institutions is fed. In Ohio, the supermax prison spends an average of $149 per prisoner, where the average prisoner costs $65 per day (Mears). According to a 2008 study, there were 1,610,446 prisoners at the end of the year (Ohio Office of Criminal Justice Services). Even at the lower costs per prisoner, this means a minimum of $104,678,990 is spent every day in order to keep that many prisoners incarcerated. This means that per year, $38,103,152,360 is spent on keeping prisoners in Ohio. This figure is low as it does not take into consideration the costs of supermax prisoners. The two main issues that face society where prisoners are concerned is how much does it cost to house them and who will they be within society once they are released? Both of these issues could be combated if true rehabilitation were to be accomplished through making the prisons into centers of production rather than places of warehousing people. It is commonly understood that to get a job within a prison is a privilege as it alleviates the daily isolation that being in a cell can create. This concept should be furthered so that inmates are required to learn the discipline of having a job, their proceeds going towards the betterment of society rather than their presence in a prison being the punitive effect. The end result would be the relief of the financial burden and the increase in well disciplined individuals who are ready to work in society. This type of prison system would have to be overseen by those who understand the human condition and have humanitarian principles. The effects of the Stanford Prison Experiment, which showed that when given power over the life of another human being people will respond to that power rather than the desire to nurture, would have to be combated with highly educated people who understand how to control their abuses of power. Many prisoners have grown up in a world that has given them a great deal of abuse. This cannot be changed when they are under the authority of people who have not been trained to behave in a humane manner and have no cognitive realization of the affects of abuse on the ability for a person to function in society. To reform the prison system is to reform how society views the desired result. There should not be free education and advantages that are denied the law abiding population, but healing and discipline, brought about by keeping schedules and working regularly, should be the way in which they are given a sense of purpose, thus giving them the desire to work in society, rather than to work outside of the boundaries of law. Prison reform is a difficult topic, fraught with politicized systems of power and abuse both inside the system and outside of the system. In addition, the needs of society are often countermanded by the idea of punishment for the sake of vengeance. The concept of punishment is framed as a “debt to society” but that debt is not paid, it is only set aside and costing the taxpayers a great deal of money for a solution that doesn’t even address the problem. Society needs a prisoner who comes out and enters the community with the intent and tools to function within the social structure and within the law. Putting them on hold so that they come out with even less tools does no one any good. Works Cited Mears, D. P. (March 2006). Evaluating the effectiveness of supermax prisons. Urban Justice Policy Center, March 2006. Web. 30 January 2011. Ohio Office of Criminal Justice Services. Prisoners in 2008. Ohio Department of Public Safety, 2009. Web. 31 January 2011. Pollock, J. M. Prisons: Today and tomorrow. Criminal justice illuminated. Sudbury, Mass: Jones and Bartlett, 2006. Samaha, Joel. Criminal Justice. Belmont, CA: Thomson/Wadsworth, 2006. Print. Scheb, John M, and John M. Scheb. Criminal Procedure. Belmont, CA: Wadsworth/Cengage Learning, 2009. Print. Spohn, Cassia. How Do Judges Decide?: The Search for Fairness and Justice in Punishment. Los Angeles: SAGE, 2009. Weiss, Alexander and Denis P. Rosenbaum. Illinois Traffic Stops Statistics Study, 2008 Annual Report. The University of Illinois at Chicago Center for Research in Law and Justice, for the Department of Transportation. 2008. Web. 30 January 2011. Read More