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The Problem with Probation

By on Jul 3, 2011 | 3 comments

When a defendant is convicted at trial or pleads guilty, that defendant gets sentenced. As I explained before, the maximum sentence for a crime depends on its classification. That classification also affects probation, the subject of today’s post.

When a defendant is sentenced they may receive probation, which I’ll go into in a moment. Not receiving probation is simple enough: the court sentences them to a term of jail “and close.” For example, someone may plead guilty to a theft in Seattle Municipal (gross misdemeanor). The prosecutor and defense could work out a plea for “5 days and close.” If the court accepts the plea (more on that another time) the defendant takes their 5 days and when it’s over, their time in the system is finished.

A defendant is, by law, entitled to the credit served in custody pending the crime. Thus, and especially if the defendant didn’t bail out and they spent a bunch of time in jail awaiting the next hearing, a sentence may be “credit for time served and close.” In that case, the person is released from jail that day. And then they’re done with the system.

Generally, closing out a file is rare. The prosecution, and often the court, want probation for a defendant. It lets them keep an eye on a defendant, and if the defendant isn’t doing the right things, it allows the court to sanction them.

Probation in the lower courts work like this: a defendant is sentenced to the maximum they can receive. For that theft above, it’s 365 days. Then some of that jail time is “suspended,” meaning the defendant only serves a portion. This is written on plea forms as, e.g. 365/360, which means a defendant is sentenced to 365 with all but 360 days suspended. Suspending a big chunk of the sentence is the carrot to induce a plea. Unsuspending days if/when the person violates probation is the stick.

Probation falls into two categories: passive or active. Passive probation is the default. If the court is going to do the suspended sentence route, the defendant will be ordered to commit no new criminal law violations and update the court with changes of address. Basically, if the person stays out of trouble for the length of probation, probation will never trigger and they’ll never have to come back to court.

Active probation, as you would suspect, requires more active participation from the defendant. They may be ordered to attended batterer’s treatment, or chemical dependency treatment, or attend driving school. Probation monitors their compliance, sometimes helping them if they run into trouble. One advantage to passive probation is not requiring the person to come to court to meet with their probation officer. The meeting isn’t particularly onerous, but it’s another opportunity to make a mistake, plus it’s time out of your day.

How long does probation last? The maximum is determined statutorily. It’s usually either 12 months or 24 months, but DUIs have a maximum of 5 years. DUIs get a bigger stick, and the probation always involves getting an alcohol-problem assessment, as well as any required follow-up treatment. DUIs are expensive.

An old case from the U.S. Supreme Court, Illinois v. Williams, held the laudable tenet that one cannot be jailed for being poor, at least beyond the statutory maximum. In Williams, the sentencing courts were imposing maximum jail sentences plus fines, and when the defendant couldn’t pay the fine after the sentence, he defendant was held additional days in jail at a rate of $5 per day to “work off the fine.” The Court held this kind of disparate impact on poor people was unconstitutional.

That is still the law of the land, including this state. However I will sometimes see a person who gets a suspended sentence and then, since they’re unable to afford the treatment or fines, get sanctioned for additional days in jail. This is legal because the sentence never goes beyond the statutory maximum, but there’s also a disparate impact of more jail for less wealthy people. Frankly, it’s problematic.

When a court or prosecutor alleges someone has failed probation in some way, the defendant gets notice of what’s called a Review Hearing. A review hearing is not particularly formal; the court has wide latitude on how to handle the matter. The hearing involves testimony on what exactly happened since probation was incurred, and specifically what the personal allegedly did wrong to trigger the review. The most common reason for a review hearing is someone being charged with a new crime, but not going to treatment or not checking in with probation is also common.

A sanction for failure to comply can be admonishment all the way to reinstating the entirety of the suspended sentence. Review hearings are no joke, and I always recommend people get a lawyer whenever they’re facing jail time, review hearings being no exception. One point on review hearings is that the prosecuting body still needs to have some evidence of the alleged fault. Being charged with a crime is one thing, but if it was instantly dismissed there’s probably no violation of “maintain law-abiding behavior.” Similarly, if someone went to treatment but probation lost the paperwork, proof of the treatment would result in no sanction.

However, a big case came out on probation recently, and it is not positive for defendants. In City of Aberdeen v. Regan, the Washington Supreme Court maintained a very low standard for courts finding violated probation at a review hearing.

In Regan, the defendant was convicted of Assault 4 and given 365 days, with 360 suspended. Mr. Regan was put on probation for 24 months of passive probation, specifically to “commit no criminal violations of law or alcohol related infractions.”

Subsequently Mr. Regan was charged with another Assault 4 and Criminal Trespass. He went to trial and was found not guilty. There was nonetheless a review hearing. The review court subsequently determined Mr. Regan had committed a criminal act in violation of probation and reinstated 5 days of the suspended sentence.

The case was appealed all the way to the Washington Supreme Court. The main issue for the court was whether a jury verdict of not guilty utterly prevented a court from finding a defendant had committed a criminal law violation. The Washington Supreme Court held a lower court could indeed find a violation despite a Not Guilty verdict, because the standards of proof were different.

The court held that while a jury must find a defendant guilty beyond a reasonable doubt for a guilty verdict, a judge at a review hearing need only find that it was more likely than not a defendant committed the criminal act. I can’t disagree with the court’s reading of the law as it’s written, but it’s troubling nonetheless.

A colleague of mine had exactly the same situation for one of her cases. A man was charged with a crime, they went to trial, and the man was found not guilty. Nonetheless, the trying court determined he had committed a criminal act in violation of his probation and reinstated 100 days. This was precisely the amount the prosecution was looking for on a guilty plea. For my colleague, this meant the person might as well have not exercised their rights at all. At that point the defendant literally could not win.

Review hearings have a double whammy of having a lower standard of proof and more relaxed rules of evidence. This is especially true when the trial judge is also the reviewing judge. As I’ve said before, the rules of evidence exist to give the defendant a fair trial so a jury finds guilt or innocence based on the facts of this case, rather than their “character.” But a judge is certainly permitted to hear damning testimony even if the jury doesn’t, that doesn’t mean the judge can’t use that testimony to find that lower standard.

One example is privilege. Privilege means communication that is private, which for societal reasons cannot be introduced at trial. Doctors and patients’ communication is privileged, so that patients can feel free to tell their doctors their issues and get treated.

Let’s say the prosecutor wants to introduce evidence of doctor/patient communication in a trial. A court will not unilaterally declare the communication off-limits because there are a few limited exceptions. So outside the hearing of the jury, a psychiatrist would tell the court what the defendant told him. Let’s say in this case it’s that the defendant confessed to a theft, because he’s a kleptomaniac and wants to get help. This is per se privileged communication. It should never reach the jury. And let’s say it doesn’t, and the jury acquits him.

But the judge heard the “privileged” testimony, and so now he knows the defendant did in fact commit the theft. He can certainly unsuspend probation based on that, or any other evidence, even though there’s not enough to get a conviction.

Ultimately the ruling lowers the standard for people getting thrown in jail, which most people should agree is not a good thing. I can only hope legislation is passed in the future to refine exactly how difficult it is or should be for people to get locked up. In the meantime, one’s best bet is to get a lawyer whenever one is charged with a crime or for review hearings. The stakes are just too high otherwise.

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  • It seems that the injustice here could be remedied in two ways. Either the burden of proof on the government at the Review Hearing could be raised, or the consequences of probation could be lessened. The second seems preferable, since it lets you move to an enforcement mechanism that relies more on swiftness and certainty of punishment, and less on the severity of punishment. Imagine if the consequences of the first gross misdemeanor violation, were another 5 days jail instead of 360. Would Regan appeal his case all the way to the state Supreme Court? Or would he serve the sentence and get back to the rest of his life?

    Mark Kleiman, who is a public policy professor at UCLA and former Justice Department criminologist, talked about this concept at a Seattle Town Hall, and also met with the City Council’s public safety committee. Several jurisdictions, most notably Hawaii, have had some good success producing “less crime and less punishment” by relying on a probation system that focuses on immediate, short term sanctions for parole violations as opposed to low-probability long term sanctions. This approach has lower costs-per defendant, so it lets you keep more people on probation as a result (the typical probationer commits zero violations).

    (side note: why did the city pursue 360 days worth of parole revocation for assault 4+criminal tresspass? Assault 4 is a tiny charge. There are two ways I can see the city taking up parole revocation. (1) the parole officers are really bored. (2) this is some sort of stalker case or repeated assault of the same individual.)

  • Actually in Regan, the revoke was 5 days. Certainly the matter was mooted by the time it made the Wash. Supreme Court for Mr. Regan, but the principle remains in force for prospective violations.

    I saw that Town Hall talk and while there were some good ideas presented, there was also an issue of short cutting due process that didn’t get wholly resolved. I would prefer either the burden of proof be increased, since it leaves discretion with the judge; or the court is collaterally estopped from finding a violation on a not guilty verdict. But I don’t think any solution is perfect.

  • Melody Clark

    Nice work, Noah. Thanks for pointing me to your blog. You make the law and all of the ins and outs very readable and understandable for us “lay” people.

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