Sec. 12.08.01.22. Violation and Revocation

A. Basis of Revocation.

(1) Upon satisfactory information alleging that a parolee or mandatory releasee has violated any of the conditions under which he was released, a warrant may be issued, and, after the parolee or releasee is taken into custody, a preliminary hearing shall be provided in accordance with § E, below.

(2) If a parolee or mandatory releasee does not demonstrate capacity and willingness to fulfill the obligations of a law-abiding citizen, or if his continuance in the community becomes detrimental to the integrity of the parole system or incompatible with the welfare of society, he may be reimprisoned pending a hearing to determine if his parole or mandatory release should be revoked.

(3) Technical Violations. If a parolee or mandatory releasee violates any of the conditions of parole, other than commission of a new offense, he shall be termed a "technical violator".

(4) Charge or Conviction of a Crime. If a parolee or mandatory releasee has been arrested, or is awaiting indictment or is awaiting trial, or is serving a sentence, concurrent or consecutive, for a crime committed while on parole, he shall be termed a "violator".

(5) Absconding. If a parolee or mandatory releasee cannot be located for an extended period while on parole, he shall be termed an "absconder".

B. Duty of Agent.

(1) It shall be the duty of the supervising parole agent to make application for a warrant of parole violation in every case where the parolee is termed a violator.

(2) The application shall be in the form and style approved by the Commission from time to time.

(3) The agent may, in the exercise of sound discretion, elect not to apply for a warrant. In this case, the agent shall at once prepare a written report setting forth a summary of the parolee's background, parole adjustment, the full facts of the alleged violation supplemented by police and court records where applicable, together with a complete explanation and recommendation as to why a warrant should not be issued. The Commission shall consider the report and shall either concur with it, issue a warrant, or take such other action as it may deem appropriate.

C. Pre-Warrant Conference. Before issuance of a retake warrant for an alleged violation of parole, the Commission may, in its discretion, consult with the parole agent, or any other responsible individual to determine whether or not a warrant should be issued.

D. Warrants.

(1) All warrants shall be issued in the manner and form prescribed by the Commission from time to time.

(2) A copy of the warrant shall be furnished the parolee or mandatory releasee at the time of his apprehension and shall set forth with certainty the nature of the alleged violation.

(3) If a parolee or mandatory releasee is already incarcerated on other charges, the warrant shall be filed as a detainer and a copy given to the parolee.

(4) A parolee or mandatory releasee detained by a warrant of the Commission may not be released on bail.

(5) A warrant filed by or for the Commission may not be lifted without prior consent of the Commission.

E. Preliminary Hearings.

(1) A releasee in custody solely as an alleged parole violator shall receive a prompt preliminary hearing before a hearing examiner designated to conduct the hearing. The hearing may be conducted either in the county where the releasee was arrested or the county in which he was residing.

(2) Before the preliminary hearing, the parolee shall be given written notice stating the date and place of the hearing, the purpose of the hearing, fully disclosing the charges alleged as parole violations and informing him of the following:

(a) He shall be allowed to testify in his behalf;

(b) He shall be allowed to call witness in his behalf;

(c) He shall be allowed to cross-examine his accuser or accusers unless disclosure of the identity of the accuser might subject the accuser to risk or harm.

(3) The parolee may waive the formality of a preliminary hearing and request a prompt revocation hearing.

(4) The hearing examiner shall inquire to determine whether there is probable cause or reasonable grounds to believe that a violation of parole has occurred.

(5) The hearing shall be informal without resorting to strict adherence to rules of evidence. The hearing officer shall make a summary of what transpired at the hearing, and make determination of whether there is probable cause to hold the parolee for a revocation hearing.

(6) Withdraw.

(a) Any hearing officer, upon finding probable cause to believe a violation of parole has occurred, may, in his discretion, withdraw the retake warrant and substitute for it a subpoena served by him on the alleged violator requiring the parolee to appear before the Commission at a time certain, then and there to show cause why the parole should not be revoked.

(b) Authority is hereby delegated to the several hearing officers to sign subpoenas on behalf of the Commission.

(c) A warrant may not be so withdrawn unless the hearing officer has determined to his satisfaction that the alleged violator would not constitute a danger to society if allowed to remain at large until the revocation hearing and that the interests of justice would best be served thereby.

(7) Any person who participated in a parole release decision or has supervised the alleged violator on parole is disqualified from conducting a preliminary hearing.

F. Revocation Hearings.

(1) The hearings are conducted as an adversary proceeding and are subject to judicial review. One commissioner is authorized to conduct the hearings.

(2) Scheduling.

(a) A parole revocation hearing shall be held within 60 days after apprehension of the parolee on the parole violation warrant, except that failure to hold the hearing within the 60-day period may not be in contravention of this paragraph if the parole violation warrant is not the sole document under which the parolee is detained or incarcerated. This paragraph may not serve to invalidate the action of the Parole Commission in revoking the parole of an individual if, under all the circumstances, the revocation hearing is held within a reasonable time after the parolee was apprehended and detained for violation of parole under the parole violation warrant.

(b) The Commission may, for good cause shown, postpone a parole revocation hearing.

(3) Counsel. Parolees or mandatory releasees are entitled to counsel of their choice. The Parole Commission shall make an effort to obtain, without cost, counsel to represent indigent parolees or mandatory releasees desiring representation.

(4) Parole Agent. Unless excused for good cause, the supervising agent shall be present at the hearing to report on the activities of the parolee or mandatory releasee and about the circumstances of the alleged violation. He shall be subject to cross-examination.

(5) Witnesses.

(a) Any party to the proceedings may call any witness having pertinent information relative to the parolee's or mandatory releasee's adjustment to parole supervision or to the circumstances concerning the alleged violation.

(b) The Commission shall be notified 5 days in advance of the hearing by the party of intention to produce a witness, giving the identity of the witness. Otherwise, the Commission is not required to recognize the witness.

(c) If witnesses do not appear voluntarily, the Commission may issue subpoenas to compel their appearance, upon timely application therefor.

(6) Transcript.

(a) All parole revocation hearings shall be recorded, and transcripts shall be made available upon suit for judicial review.

(b) If a request for a transcript has not been received within 60 days of the hearing, the Commission may destroy the recording.

(7) Commission Decisions.

(a) The Commission is an administrative body and is not bound by the rules of criminal practice and procedure. Its decisions are based on the evidence produced at the hearing without adhering to formal rules of admissibility. A Commissioner's final decision is based upon the preponderance of the evidence.

(b) A Commissioner may continue the parolee or mandatory supervisee on parole, and release the parolee or mandatory supervisee under the original conditions of parole or with modifications to the original conditions.

(c) If the Commissioner revokes parole the Commissioner may award credit against the original sentence for all or a portion of the period between release and revocation, except as provided in §F(7)(d) of this regulation.

(d) A prisoner may not receive credit for the period between release and revocation if:

(i) The parole or mandatory supervision release is revoked for a prisoner who was on parole supervision for a violent crime which occurred on or after October 1, 1994; and

(ii) The parole or mandatory supervision release is revoked due to a finding that the prisoner committed a violent crime while on parole or mandatory supervision release.

(e) Except as provided in §F(7)(d) of this regulation, an allowance of parole time as credit toward time served is at the absolute discretion of the Commissioner and may be based upon, but not limited to, the following considerations:

(i) The length of time spent on parole;

(ii) The demeanor of the parolee or mandatory supervisee while under supervision;

(iii) The nature of the original offense; and

(iv) The nature of the violation.

(f) Except as provided in §F(7)(d) of this regulation, time spent incarcerated pending trial for a new offense may, at the absolute discretion of the Commissioner, be credited toward time served on parole.

(g) Except as provided in §F(7)(d) of this regulation, time spent incarcerated following the issuance of a parole revocation warrant shall be awarded and credited by the Division of Correction.

(h) If a parolee or mandatory supervisee is allowed partial or no time credit, the unallowed time spent under parole supervision shall be added to the maximum expiration date of the original term of confinement.

(8) Form of Decisions.

(a) The decision of the Commissioner shall be announced at the conclusion of the hearing. In addition, a written decision accompanied by a concise statement of the findings of fact and the determinations of contested issues shall be prepared as soon as practicable after the hearing.

(b) The written decision shall be furnished the alleged violator personally and, in cases of revocation, a copy shall be furnished the correctional authorities.

(9) Parole Rehearings. The Commission may, in its discretion, set a date for a new hearing as part of the revocation order. Consideration for rehearing may be based upon the following:

(a) Technical or Absconder. A date for rehearing may be set at the discretion of the Commission if one year or more remains to be served after credit for good and industrial time is deducted.

(b) Violator.

(i) If the violator receives a new concurrent sentence for a crime that is not a violent crime, the rehearing date may be set no earlier than the completion of 1/4 of the new sentence, unless the Commissioner sets an earlier date.

(ii) If the violator receives a new consecutive sentence for a crime that is not a violent crime, the rehearing date may be set no earlier than 1/4 of the time left to be served on the combined sentences, unless the Commissioner sets an earlier date.

(iii) If the violation is the result of a conviction for a violent crime as defined by Correctional Services Article, §7-101, Annotated Code of Maryland, the violent crime occurred on or after October 1, 1994, and a new concurrent sentence has been imposed, the rehearing date may be set no earlier than the completion of 1/2 of the new sentence, unless the Commissioner sets an earlier date.

(iv) If the violation is the result of a conviction for a violent crime as defined by Correctional Services Article, §7-101, Annotated Code of Maryland, the violent crime occurred on or after October 1, 1994, and a new consecutive sentence has been imposed, the rehearing date may be set no earlier than the completion of 1/2 of the time left to be served on the combined sentences, unless the Commissioner sets an earlier date.