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Criminal Justice Reform Part III: Changes to Conditions of Probation and Violations of Probation

The Criminal Justice Reform Act not only focused on changing the criminal laws and getting rid of mandatory minimum sentences, but it also made changes that will benefit those on probation. Many people struggle while on probation - whether it is because they cannot afford their probation fees, because they suffer from substance abuse or alcohol issues, or because they simply cannot stay out of trouble and end up facing new charges. The recent reforms will help those who struggle financially, those battling addiction, and those taking lawfully prescribed medications.

Probation Fees

One of the biggest obstacles people who are incarcerated face when they get released is being able to financially support themselves. They struggle to find employment and even when they do, it is often minimum wage. Many individuals who receive a house of correction or state prison sentence are also placed on probation and will have to pay probation supervision fees when they get released. Before the reforms took place, when the probationer was released from incarceration, he or she would immediately have to begin paying the probation fee. If the fee was not paid on time, a notice of probation violation would issue leading to more court dates, a probation violation, and even the possibility of being sent back to the house of correction or prison. Under the new reform bill, the court can no longer impose the monthly probation fee for the first six months a person is on probation following their release from the house of correction or state prison. This will allow individuals being released time to readjust to the community, find employment, set up stable housing, and pay necessary expenses before being burdened by probation fees.

The reforms have also given the courts the ability to waive the monthly probation fee after the six-month period for the duration of the person’s probation. The court can also choose whether or not to impose a community service requirement when they waive the probation fee. If community service is imposed, then the probationer can only be ordered to perform up to 4 hours a month.

Taking Prescribed Drugs

Many probationers also ran into issues when their conditions of probation prohibited drugs or alcohol but they were taking medications lawfully prescribed to them which caused them to test positive for prohibited substances. With the new reform measures in place, a probationer cannot be found in violation of their probation when they take a controlled substance that they were legally prescribed by their doctor. A probationer can also not be found in violation if they use or possess medical marijuana if (1) their health care provider gave them a written certification allowing them to use medical marijuana for treatment of a debilitating medical condition, (2) the amount of marijuana the probationer has in their possession is within the amount recommended by their health care provider, and (3) the probationer has a valid medical marijuana card.

Drug Possession

Under M.G.L. c. 94C §34A, a person was given immunity from prosecution, meaning they cannot be charged with a crime, if illegal drugs were found in their possession when they sought help for someone else or themselves during a drug overdose. Prior to the reforms, a probationer could still be found in violation of probation even though he or she could not be charged with a new crime. This anomaly in the law was fundamentally unfair as it still punished the probationer for seeking medical treatment and could have resulted in many people not seeking treatment for fear of being found in violation of their probation. Under the new laws, a probationer can no longer be found in violation of their probation if drugs were in their possession when they sought medical treatment during an overdose.

If you have received a notice for a probation violation hearing or are facing a final probation surrender hearing, contact us today! Contact us at Sweeney & Associates for a free consultation. We can be reached at (617) 328-6900 or we can be reached by email at mail@rsweeneylaw.com

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