Probation Surrender: The Legal Process

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“Probation surrender” refers to a violation of probation.  The term is used mainly in the state of Massachusetts, although it may be used informally in other states.  The state “surrenders” a probationer in violation of the terms of his or her probation, in a series of legal proceedings and hearings. 

Probation may be violated by: getting arrested, failing to update personal information, failing to check in with the probation officer, failing to pass a drug or alcohol test, failing to pay the probation fee, skipping out on rehabilitation programs, and, in short, getting into any kind of trouble. 

The first step in the probation surrender process is receiving a letter from the probation department clarifying the alleged violations and scheduling the probation surrender hearing.  The hearing should be scheduled within a reasonable time after the notice is served.  In addition, a preliminary probation detention hearing may be scheduled to place a dangerous probationer in jail until the final probation surrender hearing takes place. 

During the probation surrender hearing, the probationer has the right to a defense lawyer.  The prosecutor must show within a “preponderance of the evidence,” which is a “more likely than not” standard unusually low for a criminal proceeding, that the probation was violated.  The probation detention hearing has an even lower standard of proof: mere “probable cause” to believe that probation was violated.

Also, the rules of evidence are very light in probation surrender hearings.  For example, prosecutors representing the probation department may bring in “hearsay” evidence and unlawfully seized evidence.  Sentencing during a probation surrender hearing may include: incarceration, longer probation, electronic monitoring, house arrest, additional community service, loss of drivers’ license, additional fines, and anything that the judge believes will be effective and reasonable in deterring future criminal behavior. 

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Last Modified: 01-28-2011 04:39 PM PST

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