Probation

Probation Supervision

Massachusetts state courts impose probation as a sentence frequently and for long durations of time. While probation is obviously better than serving a custodial sentence, it is still a hardship and an infringement on one’s liberty. In addition to the conditions of probation that may be imposed, such as anger management classes (which you need to pay for) and drug testing, you also need to go to the court where your probation officer works to check in frequently. This can be particularly challenging for people who are working or in school, and for people who do not have access to reliable transportation. Additionally, people on probation must pay a “probation supervision fee” or complete community service if they are unable to pay, which is expensive if you are paying and time-consuming if you are doing the community service option.

Being on probation is particularly perilous if charged with a crime while on probation. Most people know that when someone is charged with a crime, they cannot be convicted unless the prosecutor can prove beyond a reasonable doubt that the accused committed the offense. This can be done at a trial or by the person pleading guilty. However, if the person is on probation at the time that they are charged with a new crime, they can face separate consequences for violating the conditions of their probation, which always includes abiding by federal, state, and local laws. Probation violations only need to be proved by a preponderance of evidence standard, which is much lower than proof beyond a reasonable doubt. So in theory, someone can be found not guilty at trial but still be found in violation of their probation based on the exact same allegations. To make things even more difficult for the probationer, hearsay (things that were said outside of the courtroom) can be admitted at the probation hearing which would not be allowed at trial. Someone who is both convicted of the crime and found in violation of their probation because of that same crime can effectively be punished twice: once for the conviction and again for violating their probation. To state the obvious, it is not good to be on probation.

In 2018, as part of a major criminal justice reform package enacted into law, a compliance credit system was created for people on probation. People who are placed on probation following a period of incarceration (unless the sentence was for a sex offense) can earn compliance credits, which is like good time credits off a custodial sentence. After a year on probation, they can start earning 5 days of compliance credit on the first of each month if they were compliant for the previous month. After 2 years on probation, they can earn 10 days per compliant month. These compliance credits shorten their period of probation supervision, just like good time credit shortens a custodial sentence. If served with a violation notice, one does not earn credit until that matter is resolved. If the probationer is found in violation of their probation, their compliance credits can be revoked (as can their probation). 

This provision was created to add a formal incentive for compliance with the conditions of probation. If a person does well on probation, their probation will be shortened by statute. But this only applies to someone on probation following a period of incarceration. This does not apply to someone who only receives probation as their sentence.

A judge still has the discretion to terminate probation early for someone who has done well on probation and does not qualify for compliance credit because they had not been given a custodial sentence. The logic behind the compliance credit system still applies: if someone is doing well on probation, they should be rewarded with a shorter period of probation. 

Recently a judge in the Lowell Superior Court terminated my client’s probation early despite not qualifying for compliance credits. My client was placed on probation (with no custodial sentence imposed) for 3 years so he fell outside of the compliance credit system. When we appeared before the judge, he had been on probation for 2 years and 4 months and was doing very well on probation and in life. The judge noted the reasoning behind the compliance credit system, which was to incentivize and reward people for doing well on probation. He terminated and discharged my client from probation supervision early. 

If you are on probation and have been doing well, please contact my office to discuss whether you may be eligible for early termination of probation. An experienced probation violation attorney can help you with your petition to the Court.  

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