What rights do I have if I am a person with a disability going through probation revocation proceedings?
The ADA and California state law protect your rights during probation revocation proceedings.[870] In addition, you have a constitutional right to Due Process during a revocation hearing,[871] this means that the court must give you notice of and ensure that you can participate effectively in the hearing. (See PG. 212 above for more information on your Due Process rights during a probation revocation hearing).
If you have a disability, you have the following rights during probation revocation proceedings:
- Reasonable accommodations from Probation staff[872] Examples of accommodations include: Ensuring access to the hearing room for a person with mobility impairments; providing Braille or taped documents or reading assistance for a vision-impaired person; providing assistance in communicating for a developmentally disabled person; or providing sign language interpretation for a hearing-impaired person.
- Probation staff must use effective communication and provide accommodations when interacting with people on probation with disabilities.[873] That means that they must use effective communication and provide accommodation when arresting parolees or modifying conditions of probation.[874]
- In the courtroom, attorney and court are responsible for meeting your needs during the court processes.[875]
- Additional assistance to accommodate your disability so that ensure that you can fully and successfully participate in the revocation proceeding.[876]
- Information about your right to receive accommodations and equal treatment, and how this affects your probation programming and requirements.[877]
IMPORTANT TIPS IN COURT:
- Tell the judge about your disability and how it affects your probation: Remember, the judge has much more power than your probation officer in deciding whether or not to revoke your probation. So if your disability is making it difficult for you to comply with your probation conditions (and if this is the reason for your revocation), you should try to explain this to the judge. Remember to bring documentation (i.e. letters from doctors, medical reports) of your disability to court with you. Tell the Judge what assistance you need from the Probation Department to accommodate your disability: You should also explain if you need any additional assistance from the Probation Department.[878] Bring Witnesses: Finally, you can also bring any witnesses (for example, a doctor, therapist, or other service provider) and evidence (such as a letter from your doctor or prescription for medication) to show how your disability affects you.
- 870
Cal. Gov’t Code § 11135(a). ↑
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U.S. Const. amend. 14; Cal. Const. art. 7; see also Cal. Penal Code § 1203.2; People v. Vickers, 8 Cal. 3d 451 (1972). ↑
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See 42 U.S.C. § 12101 et seq. Fore more information about reasonable accommodations, and about the rights of disabled persons who are on parole or probation, please see: Prison Law Office Parolee Handbook (Aug. 2013), 43. ↑
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Prison Law Office Parolee Handbook (Aug. 2013), 43 ↑
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See Armstrong Remedial Plan (Jan. 3, 2001), § IV.S; Clark Remedial Plan (Mar. 1, 2002), § VIII. ↑
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See Cal. Rules of Court, Rule 1.100(b). See also, Cal. Civ. Code § 51 et seq. ↑
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28 C.F.R. § 35.106. ↑
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28 C.F.R. § 35.106. ↑
- 878
Telephone conversation with Tony Crear, Alameda County Probation Department ↑
Can I challenge a decision/action by the county superior court?
Yes. If you are on probation and would like to challenge a court’s revocation decision or related action, you can file a direct appeal on “any order made after judgment, affecting the substantial rights of the party.”[879]
STEP 1: To file an appeal, you must file a notice of appeal in the superior court within 60 calendar days after the court’s decision.[880]
STEP 2: When you file a timely notice of appeal, the County Superior Court will prepare a record of the probation revocation proceedings consisting of all the documents filed in the court and transcripts of the hearings and provide these documents to you, the court, the state (the prosecutor). In a direct appeal, the court must appoint an attorney to represent you for free if you do not have enough money to pay for one. If you wish to have a court-appointed attorney, you must file a timely notice of appeal within 60 calendar days after the court’s decision. For a list of County Superior Courts, visit: http://www.courts.ca.gov/find-my-court.htm.
STEP 3: If you do not file a timely notice of appeal or if your case involves information outside the court record, then you may be able to raise the issues in a state court petition for a writ of habeas corpus (see explanation in Appendix K, on PG. 280).
There are many issues that you can raise in a challenge to a revocation proceeding or decision. Claims can be based on violations of state or federal constitutional due process rights, California or federal statutes, or California administrative rules. For example, a person could argue that the revocation hearing is being unreasonably delayed, that he or she was denied the right to cross-examine witnesses at the hearing, or that the revocation decision was not supported by the evidence. Unfortunately, in most cases, the process for raising such challenges will be too slow to provide any relief before you serve the entire revocation term. However, you may still benefit by getting your revocation case re-heard, getting revocations vacated, and/or getting the parole department to subtract the time served for the revocation from your parole “controlling discharge date” (CDD).