Understanding Conditions of Release
Conditions of Release are judicially imposed rules or regulations that bind a defendant beyond a mere promise to appear. They can be imposed in either the pretrial or post-conviction or sentencing stages. Pretrial, they can be imposed by a Magistrate on a Bench Warrant (cited below). They also may be imposed by a Judge at any time prior to or during the trial itself under Criminal Procedure Rule 536. A Judge also may order Conditions of Release at the time of sentencing under either the Sentencing Code or the Probation Code. Often, it is at this time that a Judge will issue a Sexual Offender Registration requirement (commonly known as Megan’s Law) under the Sexual Offender Registration and Notification Act (SORNA). Conditions of Release may include, but are not limited to: supervision, no contact orders, ordering the defendant to refrain from consuming alcohol and/or drugs, or requiring periodic reporting to probation.
Conditions of Release typically are supervised whether it is on Intensive Supervision or Regular supervision. Intensive Supervision is the most restrictive type of probation supervision . An individual placed on Intensive Supervision usually must be accompanied by his or her probation officer for all appointments (such as a medical appointment), have a curfew to abide by, and must report to their officer at least once a week. They may be required to submit to urinalysis (UA) and are sometimes subject to electronic monitoring (also known as Global Positioning Systems or GPS). One the other hand, Regular supervision is less demanding of an individual. Those on Regular supervision generally have a set number of appointments with their probation officer per month, and it is not necessary for them to be accompanied by their officer for outside appointments, which may include a medical appointment. They may be required to submit to urinalysis (UA) and are subject to limited or no discretion concerning travel. They also may be required to obtain full- or part-time employment. Third, unmonitored probationary status is when an individual does not require supervision but is still supervised and must meet various conditions, such as no contact orders.
Timing Your Motion to Modify
There are a number of circumstances in which someone may find it necessary to file a motion to modify the conditions of release, or probation. We often see instances in cases involving conditions of release where it is no longer appropriate to maintain the status quo. These situations commonly arise with regard to sex offenders, those on GPS, electronic monitoring and the like, as well as those with psychological disorders that may no longer require monitoring or treatment. Virtually all of these circumstances seem to arise from a change in the circumstances of the offender or a change in the law. Although there are many others, allow us to highlight some of the most common situations.
One frequent circumstance is where a defendant has been released on bail with strict conditions at the time he or she was charged with a crime, but the charges were subsequently disposed of or dismissed. It can be time consuming, expensive, and burdensome to constantly appear for probation progress reports and to remember to comply with the conditions of release. In this situation, a motion to modify can relieve the offender of any future obligations, such as GPS requirements, and will likely terminate on-going costs associated with compliance.
Along similar lines, modifications can be useful when it becomes clear that the goals of the conditions are likely to be met, such as in probationary or supervised release situations, or at least significantly outweighed by the trouble the offender must undergo to fulfill the conditions. This often happens in supervised release of sex offenders, who are often required to provide a list of contacts with whom they may not have direct contact, and which are often unnecessarily broad. While the underlying goal is undoubtedly noble, such a condition can be a burden to the defendant in terms of time, effort, and expense.
Many other situations exist in which a modification is appropriate and necessary.
Legal Steps When Filing a Motion
The legal process for making a motion to modify conditions of release is relatively straightforward. It begins with the preparation of the necessary paperwork.
Notice of Hearing
The first step a person must take is prepare or obtain the necessary notice of hearing form, which must be completed and filed with the court.
Motion
Next, the underlying motion modifying conditions must be completed and filed with the court. Importantly, the appropriate box on the motion should be checked indicating which conditions of release are sought to be modified. If the conditions sought to be modified are not listed, the motion can indicate such and request that those conditions also be modified.
Affidavit in Support of Motion
Finally, the individual seeking the change must complete and file an affidavit setting forth the reasons they are seeking the change in conditions and why doing so would not violate the law (in other words meet all of the " legal requirements" as outlined above.
Fees
Fees are not normally associated with filing requesting to modify conditions of release.
How to Craft an Argument for Modification
When crafting a strong argument for modification, the most crucial component is to thoroughly explain and underline the reasons for the requested changes to your conditions of release. All effective arguments rely on detailed evidence and definitive statements about why you need your conditions modified. As a general rule of thumb, you need to demonstrate a tangible, concrete reason for why the court should amend your original release conditions.
One of the best ways to showcase a clear need for modification is to offer concrete examples of changed circumstances. Your original conditions may have required you to reside at a certain address, work a particular job, or undergo a specific medical treatment program. But as time passes and your case progresses toward resolution, it’s only natural that some of these circumstances may change. For example, say you were originally required to reside at your aunt’s home when you began pretrial release, but you’ve since moved to your girlfriend’s house and have a new job that keeps you far distant from your aunt’s home. These changes make it difficult to reasonably comply with the stipulations of your court-ordered release. Detailing these changes when you file your motion gives the judge clear reason to undertake your request.
To accompany your motion, it’s also vital to include corroborating evidence that supports your position. Many defendants who successfully petition to have their conditions modified secure and provide character references that explicitly explain how they’ve complied with their conditions to the letter, as well as any responsibilities they’ve undertaken on their own since being released. For example, say you’ve been required to report weekly to your pretrial services officer, but you’ve actually been reporting biweekly, and you’ve also completed a community service project on your own time. Both those facts should be explicitly noted in your motion, along with the names and contact information for anyone who can verify them.
If your original release conditions were particularly onerous, you may have taken care to strictly follow all of their stipulations so strict compliance can be easily documented. In those cases, succeeding in making the case for modification is just a matter of clearly listing out all of the ways that you’ve complied with the conditions thus far. This compelling evidence will make your request much more convincing and leave the judge less room for doubt.
The more information you can provide in your motion, the better it will be received. More comprehensive information will lead to a better outcome. Rather than merely indicating that job and family obligations make it difficult to comply with and take part in the terms of your order, you can call upon specific evidence and past actions in order to tell a stronger story.
Possible Outcomes and Legal Consequences
Upon review of the motion, the court may either set a hearing or grant the motion (in whole or in part) without a hearing. Generally, if there is a significant change of circumstances, the hearing is required. During the scheduled hearing, the judge evaluates the evidence to determine whether a modification or termination of the current conditions is appropriate. In New Jersey, for example, a judge can modify any condition, including lifting the condition entirely, or requiring additional conditions. However, it must be proven that one of the following occurred: After reviewing the evidence, the court will issue an Order either approving, denying, or partially approving the request . For example, if the defendant can show financial hardship, but not sufficient hardship to eliminate the GPS-monitoring device, the court may require the defendant to pay only a portion of the cost, or to undergo monitoring solely by the sheriff’s department. In the event that the court denies the request, the parties may file another motion after a significant change of circumstances, or they may opt to file an appeal of the court’s Order. In the event of approval, the judge generally will issue an Order setting forth the new or modified terms. To a certain extent, litigants must depend on the judges’ discretion in both granting the request, and in determining the appropriate level of supervision. As an example, if a defendant suffers from a serious medical condition (such as heart disease), the court might conclude that the individual is not a flight risk regardless of pending charges.
Tips When Filing Your Motion
The following is a list of tips to keep in mind when trying to increase the chances that the motion will be granted after a hearing:
If you do not know what to do or have questions, hire an attorney who practices criminal defense.
Be honest with the attorney. If you leave something out – it will hurt you. Prosecutors pay attention to details.
Be candid with the Judge and be candid with your attorney.
Keep your attorney informed if there are changed circumstances and tell him or her before the hearing.
Speak up at the hearing. Ask the Judge for permission to speak. Follow the rules and procedures of the court. Note that in most Vermont Districts, you are NOT allowed to speak at all at arraignment hearings.
When speaking to the Judge, be respectful. Do not speak to the State’s Attorney, the bail commissioner, or the witnesses.
Be familiar with the case law on the issues being raised in the motion.
Be prepared to give the judge the information he or she needs to know in order to make a decision on the motion.
Have witnesses ready to testify and be sure they will show up to testimony and are present at the hearing. This will give the Judge the opportunity to observe the witnesses (in person) under oath a year later. Judge’s typically do not want to rely on other testimony (not given under oath) over a year ago.
Get the witnesses to do the background work for you prior to the hearing.
Common Pitfalls and How to Avoid Them
One of the most common challenges is failing to file the motion with the appropriate court. Many people seeking to modify conditions of release in a criminal case are not clear on where to file their motions. Be sure to review carefully where your case is being held and where you need to file your Motion to Modify Conditions of Release. For example, if your case is being heard in District Court, file your motion in District Court. If your case is being heard in Family Court, file your motion in Family Court. In some cases, cases are filed in District Court, and they are later moved to Family Court. Always be clear as to what Court is currently hearing your case and, therefore, in which Court you need to file your Motion to Modify Conditions of Release.
Another challenge is ensuring that your motion has been served on the government. Be sure to obtain proof of service once you’ve served your motion.
Finally, consider what the judge in your case is likely to do. Your judge may not grant your motion if you do not have a clear showing that either your circumstances have changed or that the circumstances that were the basis for the conditions of release no longer apply.
Successful Cases of Modifying Conditions
To illustrate the strategies outlined in the previous sections of this article, we’ll take a look at some real and hypothetical case studies of successful conditions of release modifications.
Case Study 1: Removing or Reducing Electronic Monitoring
A client is placed on electronic monitoring after being accused of a drug crime involving heroin. His system is cleared of all substances except marijuana at the time of his arrest, and he is adamant that he is not a regular user of the drug. However, the prosecutor is pushing for electronic monitoring based on a prior drug crime charge that the client was able to get reduced to a fine only. After meeting with his criminal defense lawyer, the client learns that the monitoring program is so overburdened that there will probably be no incentives and he will be expected to pay even if the device malfunctions and has to be replaced frequently. In addition, the cost of the monitoring program is in excess of $300, which is an unreasonable burden for the client, who is unemployed and unable to find work due to his probationary status (and related lack of a driver’s license). Despite objections from the prosecution and the court, the client’s criminal defense attorney is able to successfully argue for leniency on the electronic monitoring, and the client is released under regular supervision conditions instead.
Case Study 2: Adding Conditions to a Release
A client, who is out of state and accused of ransomware crimes, fails to attend his court hearing and is issued a bench warrant. When he appears before the judge, he admits that he was either unaware of the hearing date or forgot to attend, but he doesn’t provide a specific reason. The judge lectures him about missing the court date and sets bail at a higher amount than he was not previously required to pay (although he has not been undergoing electronic monitoring, which would be an automatic condition for the prosecution for most crimes) . The client’s criminal defense attorney is aware that the prosecutor is attempting to make a public example out of his client in the hopes of deterring future conduct, so he works to ensure that the client’s bail is set back to a more reasonable amount. He also volunteers to advise the client on how he needs to behave and dress when coming to the courtroom in the future to avoid upsetting the judge again.
Case Study 3: Modifications for Compassionate Reasons
Under political pressure, a prosecutor decides to charge a defendant with felony fraud charges, resulting in a mandatory hold due to her immigration status. The defendant is legally in the country and has no plans of leaving. Her family, including five minor children, reside in the U.S. and are all gainfully employed. The presiding judge agrees to bond the defendant out on the condition that she check in daily via phone to allow for face-to-face meetings. In addition, the defendant is forced to report in every day to a local law enforcement agency to continue to ensure that she is not a flight risk.
Of course, even if the defendant acquires the ability to bond out, she may be unable to meet these conditions as she has to work full time to support her children. In this case, the defendant’s criminal defense attorney is able to show proof of the defendant’s employment and children. He argues that the conditions the court has placed on the defendant are more burdensome than what other defendants are asked to meet for less serious charges. The presiding judge agrees and modifies the conditions to allow the defendant to report in daily via phone only and returns her to a local police department for periodic face-to-face visits when necessary.