Monday, February 1, 2010

Which sentences get probated and why?

One of the commenters asked a question about which offenses warrant prison and which probation. Dashed good question, too.

If only I could answer it.

But let me try. I suppose first one needs to chalk up the purposes of the two options, probation and prison. Boiling them down to their essentials, I come up with:

Probation = rehabilitation
Prison = punishment

Sure, there are punitive elements to probation and one always hope for self-betterment in prison but from the stand-point of the prosecutor, those seem to be the basics. (I'd thought of adding "community safety" to the prison category but if rehabilitation is achieved, then probation gets us there, too). For a more detailed discussion of probation and its goals, look at last week's post, here.

Now, some offenses do seem inherently amenable to probation: any offense with an addiction underlying it, assuming the probation addresses that addiction, is something I always try to do. Obvious, and common, examples include the various drug possession offenses and DWI. If the defendant wants treatment, if treatment will prevent the crime from being repeated, then probation is a good solution. We can make it punitive as well as restorative if we want by adding a fine or jail time, but stopping the crime from being repeated is key, obviously.

Some crimes are less amenable, by their nature, to probation: the legislature has ruled out murder, for example, saying there is no murder for which probation is the appropriate sentence.

I have discussed this topic with colleagues and some have said that some crimes warrant punishment and do not invite either treatment or leniency afforded by probation. Examples provided include cruelty to animals and stalking. The thought is that both crimes exhibit a mean and harmful behavior that is premeditated and thoroughly intentional. I'm not sure I would ever make a blanket statement on the matter, but I can definitely see that argument.

As the comments to the previous probation-related entry suggest, there are times when a defendant and/or his lawyer recognize that probation will be more of a burden than jail time. That tends to be true, of course, when the defendant is looking at several years of probation measured against a few months in the county jail.

That's pretty much what I have to say about probation for now, feel free to leave comments or questions as ever.


  1. Assistant County AttorneyFebruary 1, 2010 at 11:47 AM

    It's been my experience that some defendants deserve probation, some crimes deserve probation, and sometimes the combination of the two deserves probation.

    As you alluded to, the decision is usually easiest when the crime involves drug or alcohol abuse. In those instances, it's better that a defendant get ANY treatment than sit in county jail. DWI and Possession of Marijuana are the most obvious, but many Criminal Trespass or Assault cases have some origins in drug and alcohol use. The same with Reckless Driving where we just can't quite prove up a DWI.

    Some defendants get probation, or a deferred adjudication probation because they have otherwise clean records. First time DWI and POM cases. First time theft cases (usually as a deferred to avoid conviction for a crime of moral turpitude). Driving with license suspended. These are usually better resolved by probation with the chance to keep someone out of jail. The costs of incarceration are too high both to the government and to the defendant and their family. Much better to keep them out, working, and taking care of their kids.

    Sometimes the combination means that probation is the best. Even a repeat family violence offender is sometimes better addressed through probation if it means they're enrolled in a Batterer's Intervention Program, or anger management class. A repeat drug user may need intensive outpatient counseling. Sometimes a defendant will have mental issues that caused them to commit the crime that can be addressed through a combination of MHMR and probation supervision.

    And then, yes, sometimes it's better to give someone 3 days in county with credit for time served and close the file- many DWLS are that way. Their license is suspended because they can't pay previous fines and surcharges, so putting them on probation with NEW fines and surcharges doesn't do anyone any good. Some marijuana users simply won't stop smoking, so it's more effective to just have them serve their sentence than to waste resources putting them in a program they'll fail. Sometimes a repeated pattern of behavior simply requires a very punitive punishment. And, in a few really sad cases, I've had homeless people ask for longer sentences rather than probation simply because it's three hots and a cot.

  2. I know I'm being nitpicky here, but isn't "probated" a term associated with wills and decedent's estates? I've never heard that usage before in conjunction with probation.

  3. I'm surprised you could mention cruelty to animals and not what i believe to be the most despicable of all crimes: child pornography. I'm not talking about the people who access it. I'm talking about the people who make it. The good thing about being in private practice is that I can now pick my clients.

  4. Assistant County AttorneyFebruary 1, 2010 at 8:58 PM

    I don't want to put words in DAC's mouth, but I'd imagine some of that is the fact that most prosecutors are going to see WAY more animal cruelty cases than child porn production cases- especially at the state level. It's my understanding that most of the production cases are federally prosecuted, and most of the possession cases are state prosecuted.

    Also, it's been my experience on both sides of the bar that child porn cases are rarely stand alone. They're usually part and parcel to heavy drug cases or actual child abuse, and thus highly unlikely to present probation as a legitimate option anyway.

  5. ACA is exactly right. I have never prosecuted a child porn case, I am pretty sure they go to the feds in most cases. In fact, we have a special division for child abuse, so I don't see those either, and hence not the tag-along child porn.
    ACA, you're not going to start charging me to be my spokesperson, are you?! Good work though, keep it up.

  6. Assistant County AttorneyFebruary 2, 2010 at 10:47 AM

    No charge at all- I just saw a chance for me to add a voice that's on topic, but from a slightly different perspective. In my job I see a lot more "people like us." It's very hard for a juror or citizen to identify with someone accused of Assault with a Deadly Weapon or Child Pornography. Normal people simply don't do those things.

    On the other hand, it's very easy for my jurors to sympathize with people accused of possession of marijuana, or DWI, or (far too often) domestic violence. A juror looks at a DWI defendant and, if they can't see themselves, they see their daughter or brother or no good uncle.

    So with that, my hope is that my comments can shed a little bit of light into the misdemeanor process and be a compliment to what you're writing about felonies.

  7. Crappy cases lead to probation too, which is why more serious cases sometimes end up getting probated.

  8. One more thing, do your defendants refer to it as "paper time?" Ours do. For example, one may ask for a straight 5 instead of 10/3 because they don't want all that "paper time." I suppose it's a smart strategy if you know you're likely to violate since probation revocations are so easy to prove and almost always result in time.

  9. Georgia: they don't call it "paper time" exactly, but do refer to it as being "on paper."

    ACA: do you have an email address where I can contact you? I have a question or two...

  10. Assistant County AttorneyFebruary 2, 2010 at 4:46 PM

    Sure- though I had to create a throwaway as my normal email is my full name :)

    assistantcountyattorney at gmail dot com

  11. Hey D.A. confidental,

    I was wondering- I know you have to enforce the law whether or not you agree with it- but do you believe in the war on drugs? Do you think that drug prohibition is either moral or practical? I'm asking you this because I really like your blog, and I think your smart, and I have not been able to find any good arguments in favor of the drug laws.

  12. Well, now, you're asking me the kind of question I can't really answer in my blog. Over a beer sometime, that'd be a great discussion. I do think there are some very sound reasons for prohibiting the sale and use of drugs, yes. I'm just not sure I ought to go into it here... I do hope you understand!

  13. what about a civil protective order contempt case? I know an individual who had a restraining order, but a provision for contact if it regarded the children (family violence consent order) He continued to violate the order and harass the victim via phone and email. How likely are they to face criminal prosecution, or are they likely to get a fine and reprimand?

  14. To D.A. Confidential, I am SO glad that you and your colleagues mentioned offenders charged with cruelty to animals deserving punishment not probation. This is a violent offense and it is against innocent, defenseless animals so if someone is evil and callous enough to torture and/or kill an animal, there is no telling what they would do to a person or even a child.

    I'd like to apologize for the ignorant, assanine comment JAMISON made in February of last year about being 'surprised that you could mention cruelty to animals and not what he believes to be the most despicable of all crimes: child pornography.' Obviously pedophiles are being prosecuted and punished to the fullest extent of the law already so why JAMISON would show no concern for the ongoing issue of violent crimes against animals and instead randomly bring up child pornography is just so heartless and creepy.

    I am a PETA member and we are fighting for animal rights everyday and pray that those who establish and enforce the law will open their eyes and think logically as you and your colleagues have and address the fact that people who commit these horrific crimes against animals (intentionally, premeditated or not) are displaying for all to see how violent, temeramental, dangerous and unstable they are. Its so frustrating because they keep committing these unthinkable acts and laughing in the face of the law because they know they won't be penalized. That has to change, these monsters need to be punished for such cruel, brutal, senseless crimes. Any suggestions on how to go about this? :/


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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.