By Lynn Arditi
Published April 18, 2016
State probation officials ordered a Barrington man who was in a Florida drug addiction treatment program last year to return to Rhode Island immediately.
Eric Cabral complied. Twelve days later, he died of a drug overdose.
Now, lawyers and others familiar with Rhode Island’s probation system say the department’s directive was not only unnecessary — but would almost surely have been rejected by the court.
“No judge that I know would have demanded someone leave an effective residential treatment program out of state just to appear in court,” said Christine M. O’Connell, a Rhode Island assistant public defender. “We send people out of state to treatment all the time. So it just wouldn’t make sense … ”
But in the state’s overburdened probation system, critics say, violations are often meted out assembly-line style — even when they undermine efforts at rehabilitation. Some say probation officers are driven by a “prosecutorial mentality.” Others blame the sheer volume of their caseloads, which average about 380 cases per officer.
That’s the system that caught up with Cabral, a 37-year-old heroin addict whose story was told on March 6 in The Sunday Journal and on providencejournal.com.
Cabral had served a year at the Adult Correctional Institutions in 2009 on a charge of felony possession of heroin and conspiracy. In February 2015, he entered The Watershed addiction treatment program in Boynton Beach, Florida. At the time, he had about nine months left on his five years of probation, a sentence even Rhode Island Superior Court judges now say is unnecessarily long.
The Rhode Island Department of Corrections requires that probationers get permission to leave the state. The first time Cabral entered The Watershed, in November 2014, he did so. But three months later when he relapsed, his parents were so frantic to get their son help that applying for a travel permit never crossed their minds.
John Cabral and Susan Terhune said they pleaded with Adrienne McGowan, the Department of Corrections’ interstate office supervisor, not to force their son to leave the Florida treatment program. McGowan, they said, insisted that state law required that Eric return immediately because he had left Rhode Island without permission.
The Department of Corrections’ chief legal counsel, Kathleen Kelly, defends probation officials’ actions. “When Mr. Cabral went to Florida … [he] violated the conditions of his probation,” she said. “We have to compel him to come back here.”
Seven lawyers interviewed by The Journal, including a legal adviser to the state and a nominee to a federal judgeship, disagree.
Rhode Island law (12-18-2) authorizes corrections officials to exercise their “discretion, with the advice of the attorney general” to order a probationer who has left the state to return to Rhode Island.
Kelly maintains that probation officials were abiding by a separate statute (12-19-9) which “superseded” the law regarding discretion. “The issue is a violation of probation, not travel,” Kelly wrote in an email. “The law 12-19-9 specifically commands the offender to appear in court. To do so he must return [to Rhode Island]. So yes, he had to come back. There is no permit that can change that.”
Carl Reynolds, a senior legal adviser at the Council of State Governments Justice Center, a nonpartisan policy group that Governor Raimondo enlisted in 2015 to study ways to improve Rhode Island’s probation system, reads the law differently. “If there’s a general statute and a specific statute, the specific one trumps the general one,” Reynolds said. “The statute about being out of state is the more specific one and it gives discretion explicitly.”
In practice, probation officials routinely decide which infractions are presented to the attorney general’s office, said Andy Horwitz, director of the Criminal Defense Clinic at Roger Williams University School of Law. “It is simply not the case,” he said, “that every violation of those rules results in a presentment as a probation violator.”
The Rhode Island chapter of the American Civil Liberties Union also has questioned the Department of Corrections’ handling of the Cabral case. “[It] would appear that Rhode Island doesn’t forbid the use of discretion in such circumstances; it actually allows it,” Steven Brown, executive director of the ACLU of Rhode Island, wrote in a March 21, 2016, letter to the DOC’s chief legal counsel.
Alan B. Feinstein, a forensic mental-health consultant and the DOC’s supervising psychologist, says the problem stems from the probation department’s culture.
“For years, folks in probation have been aligned with prosecution and developed this kind of prosecutorial mentality,” Feinstein said. “A lot of them, for lack of a better word, are these wannabe cops …”
Mary S. McElroy, a state public defender and nominee for a judgeship in U.S. District Court, says the probation system itself — not the probation officers — is to blame.
“It’s not a lack of will to do the right thing,” McElroy said. “When you have 24,000 people on probation in the state and 63 probation officers … you can’t get into the weeds in every single case because of the volume.”
Others say probation officers could have done more for Eric Cabral.
“They could have issued a travel permit while [Cabral] was in Florida and let him stay,” John E. MacDonald, a lawyer and former president of the Rhode Island Association of Criminal Defense Lawyers, said. “If the parents called me, I’d have told them to keep their son in Florida in treatment” and gone to court to challenge the probation department’s effort to bring him back.
Probation officials also could have asked a judge for permission to let Cabral remain in Florida to complete his treatment, said Olin W. Thompson II, a federal public defender and current president of the Rhode Island Association of Criminal Defense Lawyers.
“Once they found out he was in Florida and was doing well, they didn’t have to violate him,” Thompson said. “There was certainly no reason for him to have to come back to Rhode Island in order to get permission to go back to Florida. … An attorney could have done that for him .… Probation could have done it. But they didn’t. They ordered him back.”
The same thing nearly happened to Matthew DiPetrillo.
The 21-year-old from Cranston left Rhode Island in April 2014 to enter Desert Hope, a drug addiction treatment center, in Las Vegas. He, too, left Rhode Island without permission.
“I called my probation officer and she didn’t pick up,” DiPetrillo said, “and I just left.”
When he called his probation officer from Las Vegas, DiPetrillo said, she told him he had to come back to Rhode Island. But Robert M. Laren, the assistant public defender representing DiPetrillo, told him to have a counselor at the Las Vegas treatment facility fax him a letter confirming that he was in treatment.
Laren also contacted probation officials. “They easily could have issued a warrant” to arrest him for leaving the state without permission, he said. Probation officials also could have requested that the attorney general’s office present DiPetrillo to Superior Court as a violator. But they didn’t. “Their letters,” Laren said, reading from the case file, “all end with, ‘we defer to the attorney general’s office…'”
DiPetrillo was still in Las Vegas when his public defender presented his case before Superior Court Magistrate John F. McBurney III.
“If he’s out there getting treatment and continues to do well,” Laren recalled the magistrate saying, “I’m not going to punish him.”
Magistrate McBurney said he did not recall the particulars of DiPetrillo’s case but said that he has, more than once, allowed a probationer who left Rhode Island for treatment to remain in treatment, Craig N. Berke, a spokesman for the judiciary, said.
“If they’re in treatment and everybody understands what the ground rules are,” Berke said, “he has not ordered them back.”
DiPetrillo said he remained in treatment in Las Vegas for just over three months. He then flew back to Rhode Island for one day for a court hearing on his case, and then left for a halfway house the Desert Hope program runs in Florida.
No such consideration was given to Eric Cabral.
Fearing that he might be sent back to the ACI if he didn’t obey his probation officer’s order, Cabral’s parents said, their son left his treatment program early to come home.
Cabral’s probation officer filed a violation report. It stated that Cabral had left the state without the department’s permission to enter a Florida substance-abuse treatment program. “He does not appear to have any regards for the conditions of his supervised probation,” Miriam Murphy, the probation officer, wrote.
Four days after Cabral had returned to Rhode Island, McGowan, the interstate office supervisor at the Department of Corrections, signed the violation report, which was submitted to the attorney general’s office.
Jack Krollman, the lawyer at the attorney general’s office assigned to handle violations, initialed the form “J.K.,” referenced the state’s criminal procedure rule for probation violations, and noted that a notice was to be sent to Cabral.
“We get hundreds of these from probation,” Amy Kempe, a spokeswoman for the Office of the Attorney General, said. “Nobody called our office and said, ‘Please, what can we do?'”
The attorney general’s office could have issued a warrant for Cabral’s arrest, Kempe added, but it chose not to do so.
“He did not have to come back to Rhode Island until his official court date,” she said, “and that court date hadn’t been set yet.”
A week after the attorney general’s office confirmed that Cabral should be presented to the court as a violator, Kempe said, a prosecutor from the attorney general’s office spoke with Cabral’s public defender, and they agreed that since Cabral had been in treatment, they would not pursue a violation.
By the time the court set a date for the hearing, Cabral had died of an overdose.
“The system is broken,” said his father, John Cabral. “Until they look at this as a social problem, not a criminal problem, it’s just going to get worse … ”
After Cabral’s story appeared in The Journal, Matthew DiPetrillo’s father, Carmine DiPetrillo, contacted the reporter and shared his son’s story. Matthew is now in recovery and living with his parents in Cranston.
“Had it gone different,” the elder DePetrillo said, “it could have been Matthew.”