A. Applicable Legal Provisions
- All youth on parole in Illinois are entitled to due process protections at revocation hearings, under both Illinois statute and the United States Constitution.F126
- Within five business days of taking a parolee into custody, the parole agent or other staff must serve on the parolee a Violation Report and Notice of Charges.F127
- All youth must be informed of the charges against them as well as the date, time, and place at which he will have a preliminary hearing on the alleged violation.F128
- If a youth does not waive his preliminary hearing, it must occur within 10 days of youth's apprehension. A hearing may be continued for up to two additional weeks in order to produce witnesses or other relevant materials.F129
- A youth may bring letters, documents, or individuals who can give relevant information to the hearing officer.F130
- All persons who have given adverse information must be made available for questioning in the youth's presence.F131
- All witnesses must be sworn under oath.F132
- The hearing officer must be an employee of the Prisoner Review Board.F133
- All parolees have a right to a transcript of the proceedings.F134
- If a youth waives his preliminary hearing, the Prisoner Review Board will hold his parole revocation hearing typically within one month of being returned to the facility. F135
- The youth may request by subpoena the attendance and testimony of witnesses, as well as the production of documentary evidence relating to any matter under investigation or hearing.F136
- At the hearing, the youth is entitled to the disclosure of evidence used against him, an opportunity to be heard in person, an opportunity to present witnesses and documentary evidence, and the right to confront and cross-examine adverse witnesses.F137
- The youth has the right to a transcript of the proceedings.F138
- If the PRB determines that the parolee has violated any of the terms and conditions of parole, it shall issue a written statement as to the evidence relied on and the reasons for revoking parole. The youth shall receive a copy of this statement.F139
- If the PRB determines that a parole violation has occurred, it can continue and resume parole with or without modifications of the parole conditions or revoke parole pursuant to Illinois statute.F140
- At both preliminary and revocation hearings, all parolees have the constitutional right to be provided counsel where due process requires,F141 and the statutory right to retain their own counsel.F142
B. OBSERVATIONS AND FINDINGS REGARDING PAROLE REVOCATION
Youth Are Entitled to a Preliminary Hearing to Determine Probable Cause for Revocation
The preliminary hearing serves as an important mechanism to determine whether probable cause for a youth's revocation exists, curbing inappropriate or arbitrary reincarceration.F143 However, most youth fail to understand the purpose of the preliminary hearing and, on the advice of their parole agent, waive a preliminary hearing.
- 85 percent of the youth revoked from December 2009-May 2010 waived their right to a preliminary hearing. Due to their infrequency, the Commission was unable to observe a preliminary hearing.
- At five of the six parole school sessions observed, the right to and purpose of a preliminary hearing was incorrectly explained to the youth.
In instances when youth did not waive their preliminary hearing right and requested to call witnesses to testify on their behalf, the Commission found no documentation of witnesses present at the hearings.F144
Description of Percentage of Youth Who Waived Right to Preliminary Pie Chart
85% of Youth Who Waived the Right to a Preliminary Hearing, 15% of Youth Who DID NOT Waive the Right to a Preliminary Hearing
Youth Are Entitled to Constitutional Due Process Protections at a Parole Revocation Hearing
In stark contrast to the due process protections provided by the United States Constitution and Illinois statute, Commissioners rarely observed the above rights afforded during revocation hearings. Juvenile parole revocation hearings happen in a nearly identical manner to the parole release hearings discussed earlier, even though youth are entitled to significantly more robust due process protections at revocation hearings than at release hearings.F145
Youth Have the Right to Present Evidence and Confront Witnesses
Revocation determinations are made at the complete discretion of the PRB member, rather than based on the production and review of evidence and the testimony of witnesses. Parole officers seldom attend revocation hearings to testify or present evidence regarding a youth's noncompliance on parole. Instead of live testimony, Commissioners observed that PRB members base most revocation decisions on a one-to-three page parole violation report prepared by the youth's parole agent. Notably, too, youth often have limited access to this report and may see it for the first time at the hearing itself. In addition, because parole agents rarely appear at revocation hearings, youth have no opportunity to cross-examine or challenge the main "witness" or evidence against them.
Commissioners consistently recorded observations such as: "The hearings I observed moved extremely quickly. [The PRB member] rarely looked beyond the two page coversheet on the file," and "The PRB really only reviewed one document."F147
At Preliminary and Revocation Hearings, All Youth Have a Constitutional Right to Appointed Counsel Where Due Process Requires and a Statutory Right to Retain CounselF148
The State must either appoint counsel to all youth facing revocation or consider whether due process requires counsel to be appointed on a case-by-case basis. In any case, youth must be informed of their statutory right to retain counsel and their constitutional right to request state-appointed counsel.
Youth Are Entitled to Family Advocacy at Revocation Hearings
Commissioners observed that "when counselor or staff or family [were] present, results were more likely favorable; kids were not good advocates for themselves, unable to really answer questions about facts and details." Commissioners also observed that there was a "huge probability of inaccurate or incomplete information [being presented to the PRB]; kids [have trouble] clarifying. They need counselors, DCFS, 'live bodies'" to advocate on their behalf.
Despite youths' right to and observed need for advocacy, exercise of that right was sometimes met with hostility. For example, Commissioners observed one PRB member ask a youth: "This is a parole revocation hearing. Why is your family here?"
- Commissioners observed family present at only 14 percent of revocation hearings.
Description of Percentage of Youth with a Family Member Present at Revocation Hearing Pie Chart
14% of Youth with a Family Member Present at Revocation Hearing, while 86% of Youth with a Family Member NOT Present at Revocation Hearing
Youth Do Not Understand Revocation Hearing Proceedings
Commissioners also tracked when the PRB member explained not only the purpose of the hearing, but also asked the youth if he or she understood the purpose of the hearing.
- In 38 percent of revocation hearings, the PRB member failed to explain the purpose of the hearing to the youth.
- In 55 percent of revocation hearings, the PRB member failed to ask the youth if he or she understood the purpose of the hearing.
As one Commissioner observed, "these kids do not really know what is happening at hearings."
Description of Parole Revocation Hearing Proceedings Column Chart
38% of Parole Revocation Hearing Proceedings failed to explain purpose of hearing, 55% Parole Revocation Hearing Proceedings failed to ask youth if purpose of hearing is understood.
Youth Are Entitled to a Written Explanation of the PRB Revocation Decision
Youth almost never receive a meaningful written explanation of the decision at the hearing itself, despite the statutory mandate that "parole . . . shall not be revoked without written notice to the offender setting forth the violation of parole."F150
- Youth received documentation of the revocation decision in only 7 percent of revocation hearings observed by the Commission.
Description of Youth Provided with Written Explanation of Hearing Decision Pie Chart
7% of Youth Provided with written explanaion of hearing decision while 93% of Youth were NOT Provided with Written Explanation of Hearing Decision
Youth Have the Right to a Meaningful Hearing with New Charges Pending
When new criminal charges are pending against a youth, PRB members most often "continue" the parole revocation hearing until the resolution of the new criminal case, with little regard for the severity or soundness of the charges.F151 While a new case is pending (and the parole revocation hearing is continued), the juvenile remains incarcerated. Even if a youth is released on bond or given probation on the new charge by the court system - a determination made by a judge regarding the appropriateness of returning a youth to his or her community - the PRB either continues the revocation hearing or revokes and reincarcerates the youth.
For example, one Commissioner observed that a "youth was bonded out at adult court but [his] parole [was] violated due to the arrest and [he was] shipped to [IYC] Joliet in spite of court's decision to bond him out." Another Commissioner observed that a revocation hearing was "very brief since [the PRB member was] just continuing the case. The youth barely sat down, then left. The PRB looked at the sheet and said the youth has a court date . . . so [the] hearing will be continued until after the court date."
Even if the youth is eventually acquitted of the new criminal charges, and subsequently the PRB does not revoke the youth's parole, the youth will have spent several months incarcerated while the parole revocation hearing was continued.F152 In this context, arrest presupposes guilt, depriving juveniles of their liberty without a genuine hearing.
No Review Mechanism Exists for PRB Revocation Determinations
Significantly, there is no standard review process for revocations, so youth cannot appeal a PRB decision to revoke parole. The lack of review is implicit in the current PRB revocation system, since revocation determinations are insufficiently recorded, do not rely upon evidence, and are not guided by a body of jurisprudence.
C. RECOMMENDATIONS FOR REFORM
Revocation Decisions Must Be Based on Appropriate Criteria and Made by the Courts
Only after a determination by the Department of Juvenile Justice (i.e. Aftercare Specialist) that graduated sanctions have been ineffective to address youth noncompliance should youth be considered for parole revocation. At that point, youth should be presented to a judge to determine whether youth must be reincarcerated.
- Youth must be represented by an attorney (e.g. public defender) at revocation hearings to ensure a fair and meaningful hearing determining whether the youth is to be deprived of his or her liberty.F153 Revocation proceedings must not be triggered by any alleged parole violation, no matter the severity. Instead, only youth who the Department of Juvenile Justice considers to pose a public safety risk sufficient to justify state incarceration (as opposed to another sanction) will be presented to a court for a parole revocation hearing.
- In the event of a technical violation, the Department of Juvenile Justice must demonstrate that Aftercare Specialists used all reasonable efforts to promote the successful reentry of the youth before reincarceration can be ordered.
- The Department of Juvenile Justice must present evidence of its reasonable efforts, including evidence of linking youth to appropriate community-based services and programs, engaging with the youth's family and support system, and implementing appropriate graduated sanctions.
- Youth must not be detained or reincarcerated on a technical violation until a court has determined that reincarceration is necessary.
- Illinois law does not require reincarceration for violation of parole.F154 The graduated sanction system conforms to the current statutory flexibility for parole compliance, encouraging meaningful determinations of reincarceration. Therefore, a court's factual finding of a parole violation is a necessary but not sufficient condition for the court to revoke parole.
- Revocation hearings must be recorded and subject to judicial appeal.
An Advisory Committee should be established to develop a statewide implementation plan for transferring the decision-making authority for revocation proceedings to courts.
- The Commission completed an initial analysis of the impact of this change on county court caseloads based on data from the PRB, DJJ and the Commission. According to the Commission's analysis:
- Cook County would have the highest estimated caseload increase of between 28 and 33 additional hearings a month. These hearings would be divided between juvenile and criminal courtrooms. Based on the Commission's finding that 54% of parole revocations are for technical violations while 46% of parole revocations are for new charges, the Commission estimates that there would be a maximum of 18 new hearings in the Juvenile Division and 15 new hearings in the Criminal DivisionF155 per month;
- among the remaining top ten counties with the highest numbers of DJJ commitments, the caseload would increase by only about three additional hearings per month;
- in the next 20-25 counties, courts would have a caseload increase of one or two per month;
- in the overwhelming majority of counties (75-80), courts would have a caseload increase of four or fewer hearings per year;
- for the Commission's entire analysis, see Appendix L.
- Morrissey v. Brewer, 408 U.S. 471, 480-2 (1971) (holding that procedural due process requirements apply to parole revocation hearings); see also 730 ILCS 5/3-3-9.
Return to reference 126.
- ILLINOIS DEPARTMENT OF CORRECTIONS, PAROLE DIVISION, AGENCY DIRECTIVE P4.50.150.
Return to reference 127.
- Morrissey, 408 U.S. at 485; Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); 20 IL ADC 1610.140(a).
Return to reference 128.
- 20 IL ADC 1610.140(b)(3).
Return to reference 129.
- 20 IL ADC 1610.140(b)(1).
Return to reference 130.
- 20 IL ADC 1610.140(b)(1).
Return to reference 131.
- 20 IL ADC 1610.140(d).
Return to reference 132.
- "Hearing Officer" shall be defined as an employee of the Illinois Prisoner Review Board." King v. Walker, No. 06-C-204, N.D. Ill., Order dated Jan. 26, 2007, at II(5).
Return to reference 133.
- 20 IL ADC 1610.140(e).
Return to reference 134.
- A youth is placed on the next regular hearing docket upon return to a facility. 20 IL ADC 1610.150(a).
Return to reference 135.
- 20 IL ADC 1610.140(f).
Return to reference 136.
- 20 IL ADC 1610.150(b).
Return to reference 137.
- 20 IL ADC 1610.140(e). A court reporter may be provided at the parolee's expense.
Return to reference 138.
- 20 IL ADC 1610.150(i); 730 ILCS 5/3-3-9(d).
Return to reference 139.
- 20 IL ADC 1610.160(a),(d); 730 ILCS 5/3-3-9(a)(1)-(3).
Return to reference 140.
- In Gagnon v. Scarpelli, the Supreme Court held that there are "certain cases in which fundamental fairness-the touchstone of due process-will require that the State provide at its expense counsel for indigent . . . parolees" because the ability to effectively exercise the constitutional right to a preliminary and revocation hearing "may in some circumstances depend on the use of skills which the probationer or parolee is unlikely to possess." 411 U.S. at 786-787, 790. For a discussion of why juveniles categorically meet the Supreme Court's criteria, see Appendix K. 20 IL ADC 1610.140(c)
Return to reference 141.
- 20 IL ADC 1610.140(c)
Return to reference 142.
- The probable cause determination and the procedures in place for the preliminary hearing are central to the youth's ability to challenge the action taken against him. If the youth waives his right to a preliminary hearing or proper procedure is not followed at the preliminary hearing, the youth is not presented with a meaningful opportunity to object to the action and his due process protections are violated. See 20 IL ADC 1610.140(b)(2); see also Morrissey v. Brewer, 408 U.S. 471, 484 (1972).
Return to reference 143.
- Parole Files 214, 209, 258, and 270.
Return to reference 144.
- Since parole release hearings and parole revocation hearings occur in the same room in facilities, on the same day, in the same manner, by the same Prisoner Review Board members, the two hearings are treated uniformly. In fact, on a number of occasions during the observation process, Juvenile Justice Commissioners were unable to discern whether a hearing was a release hearing or revocation hearing.
Return to reference 145.
- The PRB member discussed the presentation of evidence in 1.9 percent of hearings and did not in 83.1 percent of hearings. Data was missing for 15 hearings.
Return to reference 146.
- Significantly, there was no statistical difference between length of parole release hearings and parole revocation hearings, despite the requisite due process protections at revocation hearings.
Return to reference 147.
- See Appendix K, discussing the constitutional right to counsel for juveniles in preliminary and parole revocation hearings.
Return to reference 148.
- The PRB member discussed the right to representation at 1.9 percent of hearings and did not in 83.1 percent of hearings. Data was missing for 15 hearings.
Return to reference 149.
- 730 ILCS 5/3-3-9(d).
Return to reference 150.
- The consequences of this fact-blind policy are particularly harsh for youth who commit very minor offenses (e.g. underage possession of alcohol) and/or live in neighborhoods where youth-police contact occurs regularly, often resulting in minor charges that are later dropped.
Return to reference 151.
- This is particularly significant in the lives of adolescents, for whom several months of incarceration means several months out of school and away from family.
Return to reference 152.
- L.H. v. Schwarzenegger, 519 F.Supp.2d 1072 (E.D. Cal. 2007), a federal class action lawsuit filed in September 2006 in the Eastern District of California, alleged that the California Division of Juvenile Justice systematically violated juvenile parolees' constitutional rights during parole revocation proceedings. As part of the settlement in L.H. v. Schwarzenegger, attorneys in California are appointed within eight business days of the parole hold for every juvenile parolee charged with a violation in order to uphold youths' due process protections at revocation.
Return to reference 153.
- "If prior to expiration or termination of the term of parole . . . a person violates a condition [of parole] . . . the Board may continue the existing term, with or without modifying or enlarging conditions." 730 ILCS 5/3-3-9.
Return to reference 154.
- New charges for youth on parole are most likely to fall under the jurisdiction of the adult criminal court.
Return to reference 155.