When a probationer or parolee is taken into custody due to a new arrest or a new violation, we are often asked about the status of the Gagnon I, Gagnon II, detainer hearings, and paying bail. This topic seems confusing for a bunch of folks but is actually straight forward with the proper lawyer by your side.
There are two type of potential violations of probation and parole. The first is a direct violation. This means that you have been convicted of a new crime and directly violated your probation. If you have been arrested, but not convicted of anything, this is a potential direct violation, because potentially, you could be convicted of a crime.
The second type of violation is a technical violation. This means that that you have no direct violation,but that you did not do what you were supposed to do while on probation or parole. For example, you did not complete your program, you had dirty urine, you failed to report your probation officer, etc.
The Gagnon I hearing is a very basic hearing to determine whether you should stay in custody waiting to see your back judge or if you can be released to the street with a subpoena for court to appear before your back judge. If you are in custody and having a Gagnon I hearing, it means that you have a detainer. The back judge is the judge who sentenced you. If you have only technical violations, there is a chance that you can be released. However, if you have a potential direct violation, there is little chance that you will be released at your Gagnon I hearing. Often people claim that they never received their Gagnon I hearing, but in many counties in Pennsylvania, the Gagnon I hearing is held administratively at the county prison with a trial commissioner and the defendant is not present at the hearing. The Gagnon I hearing is always held with ten days of the date that the defendant is taken into custody.
The Gagnon II hearing is when you go before the judge who originally sentenced you or a judge of concurrent jurisdiction. At the Gagnon II hearing, the judge will actually determine your fate, either to continue the probation or parole, or to revoke and resentence to additional time in jail or a new period of probation. A Gagnon II hearing must be scheduled every thirty days. If the defendant has a potential direct violation, the Gagnon II will simply be continued in advance and the person will not be brought into court and no Gagnon II hearing will take place.
Obviously, people often feel like they are stuck in limbo when they have a detainer and an open case because their back judge keeps rolling their Gagnon II hearing from month to month. The only way to attempt to get the detainer lifted is to have your lawyer file a motion to lift the detainer an get it specially scheduled before the back judge outside the purview of Gagnon II; meaning a special detainer hearing. At this time, you can have your detainer lifted.
You should never pay bail while someone has a detainer because they would never be able to receive time credit on the front case, the new case, if the bail is paid. You want to get the detainer lifted, then immediately go and pay the bail.
