Section Review

Nina L. Pomponio

Back in February 2018, my fellow section council member, Peter Elikann, wrote a thoughtful piece titled, “Early Termination of Probation.” Attorney Elikann cited the Superior Court Sentencing Best Practices, issued in March 2016, encouraging early termination of probation as an incentive to compliance. Indeed, it is well recognized that for successful behavior change, the “carrot” works better than the “stick.” 

A year prior, in February 2017, the Council of State Governments (CSG) Justice Center issued a final report¹ that was the product of over two years of collaborative effort between Massachusetts leaders and key stakeholders, with the technical assistance of the CSG. Noting that Massachusetts has the second-lowest incarceration rate in the country, Massachusetts leaders sought the report to address challenges with recidivism. The result was a comprehensive policy framework designed to, inter alia, “better align probation and parole supervision with best practices to reduce recidivism.” As one such policy option, the CSG recommended that Massachusetts establish an earned good time system for individuals on post-release probation, designed to incentivize good behavior and enable probation officers to focus more of their time on the probationers who pose the highest risk. 

The Legislature listened. On April 13, 2018, then-Gov. Charlie Baker signed into law An Act Implementing the Joint Recommendations of the Massachusetts Criminal Justice Review (the “Act”). Section 15 of the Act created section 87B of chapter 276 of the General Laws, titled Compliance Credits. Now, some five years later, compliance credits remain a mystery to some and an underutilized negotiation tool for many attorneys on both sides of the courtroom. 

Under M.G.L. c. 276, § 87B, a probationer is entitled to compliance credits, i.e., time off their term of probation, if the following conditions are met: (1) the probationary term (not the sentence) commenced after Jan. 13, 2019; (2) the probation followed a committed sentence, i.e., the probation was part of an “on and after” or split sentence; (3) the probation is not on a sex offense as defined by M.G.L. c. 6, § 178C; and (4) the probationer has served at least one year of probation. Prior to this statute, early termination of probation would only have been by motion and at the discretion of the court. 

Functionally, this framework means that beginning in the 13th month of post-incarceration supervision, probationers who meet the criteria above will earn five days’ credit off their term of probation for each month they are in compliance — meaning each month where the court has not found them in violation. Beginning in the 25th month of post-incarceration supervision, probationers will earn 10 days’ credit for each month where there is no finding of violation. Probationers earn the credit on the first of each month for the prior month in compliance. If Probation files a notice of violation, the probationer does not earn any compliance credits during the month(s) that the violation is pending. If the court, ultimately, does not find the probationer in violation, the credits for the month(s) while the violation was pending are restored. Alternatively, if the court finds the probationer in violation, the probationer will not earn the credits for the month(s) that the violation was pending. In addition, the court has the option to revoke previously earned credits as part of the sanction on the violation. If the court revokes probation, all compliance credits are automatically revoked.

Compliance credits are not discretionary. The statute is clear that eligible probationers “shall” earn credits according to the system above. In practice, the Massachusetts Probation Service is manually calculating compliance credits for all eligible probationers. Though the calculations are done at the Office of the Commissioner of Probation, each individual probation officer is responsible for managing the matter at the local level. The probation officer must monitor the calculated end date throughout the term and act accordingly. M.G.L. c. 276, § 87B(e). 

In the abstract, five or 10 days a month does not sound like much. However, taken as a whole, compliance credits have a meaningful impact on a term of probation, especially if that term is lengthy. A probationer with a three-year probationary term will have the ability to accrue somewhere between 130 and 140 days’ credit. A probationer with a five-year term has the potential to earn over 300 days’ credit. And a probationer with a 10-year term has the potential to earn over two years off their original sentence! 

The law requires that the court notify the prospective probationer at sentencing of their ability to earn compliance credits. M.G.L. c. 276, § 87B(f). Most court departments have addressed this by amending the plea agreement form. However, there are still some common friction points on compliance-credit-eligible cases. The most notable place where things go wrong is in the failure to account for a shortened term of probation when ordering certain programming or restitution. At sentencing, the parties must be aware of compliance credits when making their sentencing recommendations. If a lengthy or infrequent program is contemplated, e.g., the intimate partner abuse education program, the parties must take that into account when recommending the length of the probationary term. Parties are encouraged to consult with Probation to offer recommendations that encompass a reasonable time frame for completing requested programming. Indeed, in the District and Boston Municipal courts, this consultation with Probation is required if the parties are recommending any probationary term. Dist./Mun. Cts. R. Crim. P., Rule 4(c). Though the problems with restitution could fill numerous other articles, the parties must also be aware that the monthly payment amount (as set under Commonwealth v. Henry, 475 Mass. 117 (2016)) is exactly that — monthly. Therefore, with fewer months on probation, the probationer will be making fewer payments. The commonwealth, therefore, should prepare victims for this expected eventuality. Finally, there will be instances where a probationer is simultaneously on probation for multiple charges, or even multiple dockets, that are not all eligible for compliance credits. For example, if a probationer is on concurrent, post-release probation for both a sex offense and other eligible offenses, the probation on those other eligible offenses will terminate sooner than the probation on the sex offense, despite the concurrency. 

At violation of probation hearings, compliance credits can be a useful tool for both sides. As mentioned above, during the time a notice of violation is pending, a probationer does not earn their monthly credits. If the probationer is not found in violation, those credits are restored. However, if the probationer is found in violation, those credits are forfeited. As such, probationers have an incentive to resolve violations of probation quickly to begin earning credits once again (assuming the probationer will be reprobated). I encourage all defense attorneys, next time you wish to seek a continuance, to ask your client if it is worth five, or potentially 10, days of probation on the other end. Are clients really making an informed decision if they are not so warned? 

After a finding of violation, the court can revoke previously earned credits. This is a staggeringly underused negotiation tool. For example, after a finding of violation, perhaps the probation officer has asked the court for a one-year extension of probation. The probationer has asked to be reprobated with the same terms and conditions. The court seems to be faced with a binary choice — extend probation or not. However, if the probationer has already earned some time off the original end date, they could also offer the revocation of some, or even all, of the previously earned credits. In a way, the probationer loses nothing in that deal, as the court could have revoked the credits regardless, returning the probationer to the previously ordered end date. Yet, revocation of credits still offers some meaningful consequence for the violation. If the court chooses not to revoke the previously earned credits, even if the court extends probation, that extension would be lessened by the previously earned credits. It would also be further lessened by any future credits if the probationer remains in compliance. As one can see, compliance credits simply must be addressed one way or the other at violation hearings. 

What cannot be done is the revocation of yet-to-be-earned credits, no matter the creativity of mechanism. After the violation proceeding is adjudicated, so long as the probation is not revoked, the probationer begins earning credits again. Enabling probationers to restart after a violation avoids a type of sunk-cost fallacy so common to humanity — one that says, “since I already failed, I might as well give up.” That is like getting a flat tire and slashing the other three. Instead, despite the prior violation, probationers can begin earning credits again on a clean slate, incentivizing future compliance. 

Now, just over three years since the first probationers began earning credits, it’s time to fully understand and utilize the tool of compliance credits in our daily practice. 

Special thanks in completing this article to Massachusetts Probation Service Statewide Manager for Research & Development Laura Lempicki.