Friday, January 29, 2010

What exactly IS probation?

It's a term we see in the newspapers all the time. And the majority of successfully prosecuted criminal offenses in Travis County are addressed with some form of probation.

But what does it mean, exactly?

Many things, in reality. The beauty of probation as a resolution to an offense is its inherent flexibility. Basically, fundamentally, it is a prison sentence that is put on hold for a period of time, during which the probationer must follow certain conditions imposed upon him by the court. In the case of a plea deal, these conditions are agreed to by the State, the defense, and the court.

So, for example, if you are convicted of felony DWI you might be given a five year prison sentence, but have that sentence probated for seven years. That means that during that seven-year period you will have to abide by a set of conditions and if you don't, the judge can revoke your probation and sentence you to any term of between two years (the minimum for a felony DWI) and five years (your original sentence).

These are some of the conditions normally associated with probation:
  • a number of community service hours (picking up trash, sorting clothes at a charity store, etc.);
  • treatment for drug or alcohol addiction (which can be either in-patient or out-patient treatment);
  • counseling for other issues (e.g., anger management);
  • obtaining education (especially for younger defendants);
  • a fine;
  • a requirement to stay away or not contact an individual (in cases of assault) or a place (in cases of theft);
  • paying restitution to the victim (e.g., in theft cases, or assault cases when medical services needed paying for);
  • other prohibited activity: owning a weapon, drinking alcohol, driving even;
  • testifying truthfully at the trial of a co-defendant;
  • jail time. As a condition of probation, a defendant can agree to or be ordered to serve up to six months in the county jail.
I expect I have forgotten some, but you get the idea. Basically, in a plea deal, because the conditions are agreed to by the defendant pretty much anything goes.

Probation, if diligently observed and enforced, can be a great way to get someone back on track. It is dependent on that person working towards law-abidingness (yes, that's a word now).

But probation has another function, as well as being used for rehabilitation: a second chance. Every now and again, someone behaves out of character and does something illegal, perhaps even seriously illegal. In those instances, probation can be a recognition that the act was a one-off and that the person deserves punishment in the form of community supervision instead of time in the penitentiary.

Until recently probation was available for pretty much every offense on the books, but then the legislature decided that one offense never warranted probation: murder. I can see why they might have done that.


  1. Can a person get deferred adjudication probation for murder?

    And you forgot to mention the main reason for probation: Money for the government to employ a boatload of people in the community justice system.

  2. I see a lot of young people on probation at the alternative high school. The part that always bugs the stuffing out of me around here is that these kids, who are on probation for drug or alcohol possession/ use can fail several of their drug tests and still 'successfully complete' probation. Seems to defeat the purpose, really.

    (Esp. since they do so well in my class when they stay clean and sober... )

  3. Mr. Confidential:

    Forgive me if I am a bit cynical but, as a former public defender in Philly, we often saw probation not as an opportunity to "put someone back on track" but as a way to permanently ensnare the defendant in the system. Yes, I know: if the defendants would just fulfill the terms of the probation, they could be done with it. In reality, this was always a tad bit more difficult. In fact, we often suspected that a slightly longer jail sentence that included no probation might sometimes be in our client's best interest.

    Keep up the interesting posts. I just featured you and this blog in an entry I did on criminal law blogs.

  4. As full disclosure (and thus Anon)- I'm an Assistant County Attorney, and thus a prosecutor myself, but at the misdemeanor level.

    Anon: You're right in that often times money is a consideration, but for the exact opposite reason that you're implying. Probation is significantly cheaper than prison (and thus employs far fewer people than incarceration would). Do you think that the $35 a month our misdemeanor defendants pay really comes close to paying for the salary of their probation officer, much less the other administrative costs? Probation isn't a self-sustaining enterprise, and certianly not a money making one. So it does come down to asking the question- do you want to pay 40 bucks a day to put someone in jail? Or do you want to avoid the majority of that cost with community supervision? Either way, my paycheck doesn't vary, and I'm going to have a job so long as people break the law- regardless of the punishment outcome. Probation is a way to save money, not make money.

    Jamison: Regarding jail time instead of probation, let me wonder aloud- did you *ask* for jail time? I've had several defendants and defense attorneys look me in the eye and say "This guy's not probation material." I've been more than happy to try and work out a jail term thats acceptable to all parties. I've found that the limiting factor in my jurisdiction is the judge, who isn't fond of that and has rejected a few pleas. I've always worked for that if it's the most appropriate resolution though, and talked the judge into it on a few occassions past his reluctance.

  5. Anonymous #2: Interesting question: Have I ever specifically asked for additional jail time in exchange a shorter period of probation?

    While I have thought it many times, I have probably never been quite as direct as the attorneys you refer to. I've rarely had clients who are that self-aware. Most will agree to anything just to get out of jail. So, instead, while perhaps hinting at this with the ADA, I'll move the negotiations in that direction.

    I was a PD in Philly where the local prisons are so bad, I had one guy say to me: "hey, if I'm going to get jail-time, could you ask for a LONGER prison sentence? I need to make sure it's state time so that I can serve it outside of Philly."

  6. Good discussion guys, thanks for adding your comments.
    First, no, no probation at all for murder. So no deferred adjudication.
    Second, the county atty is right in that there's no money-making going on. What he/she didn't mention is that it's the humble ADA who decides whether or not to offer probation, and the idea of saving/making the state money that way is not a factor. Believe me, there is too much else to consider!
    Jamison, good comments as ever (and note I've linked to your blog). We have the opposite issue here - inmates are often trying to get longer county time so they can avoid going to the state prisons.

  7. Assistant County AttorneyJanuary 29, 2010 at 4:57 PM

    I must confess that I have on occassion thought about overall cost when assessing punishments- do I want to ask for 90 days to serve when 30 serves the same purpose for a driving with license suspended but costs me as a taxpayer significantly more? I'm in a very small county though, so I'll admit that makes the costs perhaps more transparent than somewhere like Houston. And I've often got less to consider (and certianly a smaller range of punishments) than if I were doing felonies.

    Jamison- I believe in being pretty direct in my office. The defense bar is very small, and we have to work together every day, so we cut through anything pretty quickly. I will also admit that some of my willingness to give jailtime for people who wont hack it on probation is selfish- it keeps me from having to spend the next 12 months messing with MTR after MTR, when they'll just end up in jail at the end of it anyway.

    And DAC is right, most of them here want to serve as looooooong as they can in county if they've got felonies and misdemeanors. Not only is it a function of the time being "easier" in county, but their good time credit is usually much higher in county. Also, in a state like Texas, they could end up being shipped HUNDREDS of miles away from family in the TDC system. If they're in county lockup, they usually don't go too terribly far away. My office coordinates very closely with the DA on those cases to make sure that people don't get stuck waiting on misdemeanor cases before they catch chain to TDC or SAFPF- it's better for everyone (except perhaps the guilty) if felony convicts aren't in county jails.

    Clair- What's the alternative? Sure, we could revoke their probation and send them to jail for their sentence, but isn't it better for them to at least have the chance to graduate? Now, if they're on defered it may certianly be appropriate to adjudicate them guilty, but even that has some pretty dire consequences for a high school aged student.

  8. Thank you, Mr. Confidential. I appreciate the link.

    Incidentally, I notice that there is no information on this site that identifies you by name. I understand this considering you are in a position of public authority. But do people generally know who you are? If not, has anyone ever tried to find out?

    That's good news about your forthcoming book. But won't that let the cat out of the bag?

    I was a government official myself in a previous career. I can't tell you how good it feels to be liberated from the inability to say anything at all of potential consequence. Through this blog, you seem to have found an effective way to circumvent this. But it did make me wonder if anyone at your office has objected.

  9. As a probation officer I would say we've come a long way since I started in the field 16 years ago.....the bottom line is rehabilitation and changing how offenders view themselves and their crimes. Successful supervision of offenders does not focus on punishment - because punishment does not work - Travis County is doing a great job along these lines focusing on cognitive based treatment.

  10. Jamison,
    It's not really a secret who I am. The blog's name came from a friend's suggestion that I liked, necessarily entailing a modicum of mystique, which is why my name doesn't appear. But the local paper did a big article on me and the blog, which blew any cover I may have had!
    As for my bosses, they have been super cool about it. Generally, they share my view which is that the people who pay us deserve to know what we do for a living, and how we do it. As long as I steer clear of really controversial topics and don't discuss non-public case information, then I have their support.

  11. Probation means the defendant walks out of the courtroom with the jury at the end of the trial. When I prosecuted in a building that had courtrooms on upper floors, we used to say the defendant takes the elevator home with you after the trial.

  12. TFM - we say precisely the same thing, mostly because it's true. Certainly it's true in the broader sense: even if he's not in the lift, he'll be in our coffee shop or grocery store.

  13. I have been a probation office in Texas for almost 16 years and about 15 years ago, I supervised a woman on for murder. She actually murdered her ex-husband in front of a police officer. He was walking up to the residence as she jumped across the room and stabbed him in the chest twice... He must have been abusive for her to get probation out of it. The interesting part was their children received assistance from the government upon his death... Guess who was in charge of the money until the children turned 18. Thant is right... she was. I always told people that the government paid her to kill her ex-husband...

  14. Probation is good for the offender who is serious about changing their life around. For the others, it's just a noose to hang themselves with. As I commented in the other blog, our defendants regularly ask for more prison and less "paper time." They always jump on probation if you lead with a prison rec on a case that would be hard to prove at trial. Then they feel like they dodged the bullet and we know it's only a matter of time before they violate.

  15. Mr. C., This is great topic and it seems to have been carried out by some very respectable and courteous people. While we are here, please allow us to present a few Qs. regarding a probation related dilemma. Any assistance at all would be greatly appreciated. Despite just learning about your site moments earlier, we fully plan on linking to DAC if you have no objections? *Thanks to each and every person that attempts to assist in educating the public at large on topics regarding the public. The knowledge you pass on today will help the present deal with the past. Who’d ever thought that ‘information’ had such healing powers?
    The Team

    Nutshell. Harris County-1984
    A probationer is arrested while allowing a person to test drive his car. Having two years remaining of a 5 years Def Adj. Probation Burg. of Veh. – (1st offense, stealing 5 gallons gas & an auto battery $75.00 total). HPD report shows being jailed on the 1st of March for "suspicious vehicle" & declared to have an "Outstanding Traffic Warrant" and searched resulting in stolen items & a pill bottle being found on the driver.

    Indicted March 13th on Agg. Rob. w/ deadly weapon & pos. of controlled substance. The State filed announcement of ready for trial the next day. Despite police report showing the ‘test driver’ telling multiple officers that he had, "found the property & pill bottle earlier.” (The Constable's Office has no records of this traffic warrant ever being issued.)

    Q.#1. Is the adult probation automatically revoked at time of arrest? Then & now?
    Q.#2. Does the probationer automatically get sentenced to the full 5 years or to the 2 years left, despite being found Guilty or Not Guilty of the new charges of agg. robbery with deadly weapon? Then & now?
    Q.#3. If a black .22 or .25 cal. revolver with two-inch barrel was the type of firearm used, can the ADA enter a black .38 cal. revolver with a 6 inch barrel as a State's Exhibit?
    Q.#4. This probationer's police report only lists the items found on the driver, (no weapons or firearms) BUT the case files lists this .38 in the Docket as being "checked out" by the court reporter and is listed as S-2 on one of (two) State's Exhibits docs. (Three S-2s in all) *Would the Probation Officer's job be to make an entry as to how probationer is connected to this "Mystery Gun" resulting in some documentation being put in a file? (No records exist)
    Q.#5. (Not about probation) - A records request to find out where it came from and where it went to was ignored. A phone call to the district clerk revealed that an exhibit clerk "personally destroyed it in 1995." She said she, "followed Art. 2.21." which excludes the need to create any Motions for Destruction, Court Orders, Chain of Custody, etc....
    Q. Can Exhibit clerks “personally destroy” firearms and Does Art. 2.21. excuse the State from creating any records as to when, how and where one is “personally destroyed”? (In 84 & now)
    Thank you.


Comments posted to this blog are NOT the opinion of the Travis County D.A.'s office, under any circumstances. They are only the personal, non-representative opinion of D.A. Confidential if posted under his name.
I welcome all comments, as long as they are expressed with politeness and respect. I will delete all comments that I deem to be personal attacks, or that are posted merely to antagonize or insult.