Early termination of probation

Issue January/February 2018 By Peter Elikann
Criminal Justice Section Review

Until fairly recently, it used to be rare for a probationer to get their period of probation terminated early. Judges would frequently deny the request stating that the fact that someone was already doing so well for the time they had been on probation was expected of them. And, besides, why end probation early if it is working out so successfully? They might also say that the sentencing judge, who originally handed out the sentence and was, therefore, the one possibly most familiar with the case, knew how long they wanted the defendant to be on probation and would have, indeed, sentenced the person to a shorter period of probation if they had seen fit.

Recently, however, in the purported interest of public safety, there has been a trend in the opposite direction in favor of presumably giving probationers an incentive to do well and rewarding them for establishing a track record of resuming a good, law-abiding life.

At this present time in the courts of Massachusetts, early termination of probation is actually being encouraged as a routine action when merited. In fact, as a result of the formation of a number of working groups assembled by Massachusetts Supreme Judicial Court Chief Justice Ralph Gants, a report was issued titled, “Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence-Based Sentencing,” in March 2016. It suggested, as a best practice, that: “At the time of sentencing, a judge should inform the defendant/probationer that, after a period of compliance, the court may look favorably upon a request for early termination of probation or lifting of certain conditions as an incentive to successful performance.”

The rationale as expressed in the report is that “Studies have also shown that probationers are often more likely to complete their probation successfully when their positive performance is acknowledged or rewarded. Positive reinforcement and the use of incentives can motivate a probationer to succeed, as opposed to probation practices that recognize (and sanction) only failure … As is true in life generally, so too in the context of probation: the prospect of a reward for success is sometimes more powerful than the threat of punishment for failure.”

Before one applies for early termination of probation, they, realistically, should meet two criteria. (1) In the time they have been on probation, they should have successfully complied with all conditions, had no violations of probation, and be up to date on payments. In other words, they should have had a good run as a model probationer. (2) In order to show how successfully they have complied with probation, they should probably not apply for early termination until they have completed, at the very least, half the period of probation. So, if one has, for example, been sentenced to five years of probation, they should probably not apply for early termination until they have already served two and a half years of it at the earliest.

Also, it would be ideal to get one’s probation officer to agree to the request. However, it is generally the policy of most probation offices to either routinely oppose such a request as a standard policy or to stay neutral and leave it up to the judge. If they oppose it, hopefully, a judge will understand that the probation officer is doing so as a matter of their office policy and not because the probationer did not earn it. Otherwise, it is actually still somewhat helpful for a probation officer to tell the judge that he or she takes no position on it either way but that they will affirm that the probationer has been in full compliance with all the rules and conditions of their probation.

The motion for early termination of probation itself should have as much detail as possible explaining not only did the probationer comply successfully with all terms of probation, but also the other positive things going on in their life to show they are currently living a life of stability and responsibility. These might include their employment, family ties and whatever contributions they have made to the community, church or non-profit organizations or private acts of kindnesses to those around them, even if it means so much as shoveling the snow for free for an elderly neighbor.

If the probationer has engaged in counseling, include a letter from the therapist noting their patient’s active engagement in it with some level of assurance that the indications are they are likely to continue living a responsible, law-abiding life. Letters from family and friends can also be included. It’s also key to give a reason why it would be better and in the interest of justice for the person to now get off of probation.

There are a number of reasons why a person might want to apply for early termination of their probation. They may want to move out of state and not go through the difficult and frequently fruitless task of attempting to get another state to accept a transfer through the interstate compact. They may have to travel out of state frequently for work or to attend to a chronically sick family member at the last minute and not always have the time to get permission first. If, as a condition of probation, they wear a GPS monitor, it may greatly limit the hours and places they can go within the state. The monitor may frequently malfunction and give off false alarms at their workplace. There is also the expense of the monthly probation fee, as well as taking time off of work to report in person to their probation officer. Or it may just be that, after years of being on probation where they have done everything to both comply with the terms of their probation and to resume a good, law-abiding life of contribution to the community, they may feel they have earned it.

If the judge denies the request for early termination of probation, all hope is not lost. Some judges have told the applicant that they would like to see them show just a bit of a longer track record on probation before they will feel comfortable terminating it. Someone who gets turned down for early termination of a five-year probation after completing half of it could ask the judge if they might reconsider their decision if they come back in another year.

This kind of positive reinforcement and incentive can help the probationer succeed in resuming a good, law-abiding life. It would therefore be in the interest of public safety to offer people a chance at an early termination of their probation.