Probation departments throughout Indiana will institute a new protocol to improve public safety for handling intrastate transfers of probation as the new year begins. It represents almost two years of work by the State Probation Committee, after extensive consultation with probation officers, the Probation Officers Advisory Board, and judges throughout the state. The Indiana Supreme Court and the Judicial Conference Board of Directors gave their stamp of approval to its adoption.
What is it? Simply stated, it is a protocol of best practices already employed by many departments for overseeing individuals who wish for whatever reason to have their probation transferred to another county within Indiana. The protocol includes the exchange of a number of mandatory forms and information, but it is not as extensive or detailed as the Interstate Compact. It is less than five pages and has fewer mandatory provisions. Probation departments have been trained on its provisions and should already be meeting with their supervising judges to ensure its smooth implementation.
Why was it developed? First of all, too many offenders were not being supervised across county lines resulting in a substantial risk to public safety. The concept of “courtesy supervision” meant probationers who had committed offenses in different “sentencing” counties were not given the same oversight and programs as other probationers. The offender might actually live in the receiving county and would therefore create the greatest public risk to its citizens. Secondly, probation departments were not communicating consistently and effectively with each other and the courts, leaving an individual unsupervised for extended periods. Finally, probation departments were competing with each other in order to charge probation user fees. In the worst case scenarios, they were actually double charging defendants and creating fees where no statutory authorization existed. The Probation Officers Advisory Board asked the State Probation Committee for assistance in addressing these problems.
What are the major changes? There are two important new provisions. First, the Supreme Court has authorized a $75 transfer fee that the probationer must pay to the receiving court whenever probation is transferred. Second, the Supreme Court has authorized new provisions, Criminal Rule 2.3 (C) and (D), which allow the sentencing court, in its discretion, to transfer complete jurisdiction of a probation violation, including full revocation, to the receiving court. The receiving court has the option to accept or reject this transfer. There is no mandatory acceptance provision. If the receiving court accepts jurisdiction, it may supervise and sanction a probationer the same as it would an offender from its own courts. This includes the authority to hold administrative and revocation hearings. Under the protocol, when an offender requests probation transfer, he explicitly accepts the complete authority of the receiving court. The receiving court has a continuing obligation to advise the sentencing court of the probationer’s status.
How is the protocol designed to work? There are several guiding principles for this protocol. First, the sentencing court always controls the process. For example, the sentencing court does not have to approve any probation transfer, it does not have to grant jurisdictional authority to the receiving court, and it can decide to revoke probation at any time if there is a violation. The second guiding principle is one of flexibility. Although there are several mandatory forms to ensure that both receiving and sending courts have adequate, updated information about the probationer, the protocol does not seek to dictate how any department must supervise an offender. The State Probation Committee felt strongly that each department should have the freedom to treat a transferred-in probationer the same as they would their own offenders. The main emphasis in the protocol is that each county must communicate completely if there are violations, even technical ones, or any changes in the probationer’s status. The only mandatory requirement for a receiving court is they must accept supervision for a probationer who lives in their county. In all other situations, they have the discretion to decline supervision, provided they communicate that decision to the sentencing court.
How will fees be collected? Each court is responsible for collecting its own fees and is not responsible for collecting fees for any other court. The sentencing court gets the administrative fee, the initial probation fee, and any monthly user fees incurred while the offender is in the sending county. The receiving court collects a $75 transfer fee and any monthly user fees assessed by the court.
What actions should courts take in preparation for the new protocols? Supervising judges and chief probation officers should become familiar with the mandatory forms and required information that must be exchanged between courts. These will be contained on the Indiana Judicial Conference probation website. Each county, not each probation department, should designate one contact person to handle intrastate matters. This contact person should be registered with the IJC. Each county should have a procedure for creating a new 17 digit miscellaneous case number whenever it receives a probation transfer. This number is required by State Court Administration and must be used for the collection of fees and when the receiving court undertakes any violation procedures.
Each county should decide which judge(s) will handle probation violations for intrastate transfers. If complete jurisdiction is transferred to the receiving court, the court should handle probation matters according to normal procedures. In situations where jurisdictional authority is not transferred completely, the receiving court must hold a fact-finding hearing to determine if probable cause exists for probation violation. The receiving court then must notify the sentencing court that a violation hearing is necessary. Regardless of whether jurisdictional authority is transferred, the receiving court must notify the sentencing court of any violations and sanctions imposed, since the sentencing court always maintains the authority to terminate probation transfer and proceed with revocation.
What if I have further questions? Please contact the Indiana Judicial Center probation website for information and forms. If you need to speak with someone, please feel free to contact Jenny Bauer at [email protected] or Mark Stoner at [email protected].
