“I’ll just get probation. . . ”
Some people, especially young people, go to court to face criminal charges with the idea “I’m only going to get probation. . . “
There are many cases in which probation is a great outcome. It can often help people get a new start after the trauma of a criminal charge. “Probation” means that as punishment, you must obey certain conditions and stay out of trouble for a specified period of time. If you do so successfully, then at the end of the time period your punishment is over, and you are free to go on with your life without government intrusion.
Conditions might include drug testing, AA or NA meeting attendance, counseling, a curfew, an order to stay away from certain people or places, or other requirements depending upon your case. Often you are required to check in periodically with a Probation Officer.
But, while many first-time offenders are sentenced to probation, it is not the “free ride” many, especially young people, think it is.
It is not unusual for a person to violate what are often very demanding terms. Even “technical” violations, like missing a curfew or not notifying the Probation Department of your new home or work address, can cause serious problems.
What you can expect when you are on probation.
There are two kinds of probation, supervised and unsupervised. Supervised means that you will have to have some regular contact with a Probation Officer. Unsupervised means that you will not have to have any contact with anyone. Unsupervised probation is most often used in very minor cases in which there are no issues of alcohol or drug abuse, mental health, or the like.
If you are placed on probation there are standard conditions that you must follow. These standard conditions apply to every person who is placed on probation:
- Pay a monthly fee. The fee is $65 a month for supervised probation and $50 a month for unsupervised. You can ask the judge for a community service alternative if you are unable to pay the monthly probation fee;
- Obey all court orders and local, state and federal laws;
- Report to your probation officer at such time and place as he or she requires;
- Immediately notify the probation officer of any change in address or employer;
- Do not leave the state of Massachusetts without express permission.
In addition to the standard conditions, other conditions could be imposed depending upon the nature of the case. These include:
- Pay Restitution;
- Random drug testing;
- Random breathalyzer testing;
- Stay away from, and have no contact with, the victim in the case;
- Mental health evaluation;
- Mental health treatment;
- GPS monitoring;
- GPS exclusion zones, areas where you are not allowed to go;
- Home confinement via Electronic Monitoring;
- Remian in school;
- Obtain gainful employment and stay employed.
A violation of any of these conditions, if they are imposed in your case, could result in your probation being revoked and a jail sentence being imposed on you.
The Court may also order you to complete one or more treatment or educational programs:
- Batterer’s Intervention Program, for domestic violence offenses;
- Anger management;
- Substance abuse evaluation;
- Outpatient substance abuse treatment;
- Inpatient substance abuse treatment;
- Prostitution Prevention Programs;
- Level 3: office of community corrections (see below);
- Level 4: office of community corrections (see below);
- OCC Drug and Alcohol Testing Based on Color Code System;
- DUI first offender program;
- DUI second offender program;
- Sex offender treatment.
The OCC level 3 program is a very intensive program that is run by the sheriff’s office. The purpose of the program is to provide intermediate supervision of chronic substance abusers who have a history of criminal offenses. The OCC program provides services including substance abuse treatment, drug testing, health education, and job development and placement. It generally includes at least weekly, and sometimes more frequent, visits to the office of community corrections to take a drug test and attend programs. OCC level 3 lasts at least 90 days. OCC level three are not available for sex offenders or probationers that have gun charges.
The OCC level 4 is the same program as OCC level 3, but you will be under electronic monitoring. This means you will be under house arrest at home, you will have to wear a GPS ankle bracelet, and will only be allowed out of the house to attend OCC.
Should you be ordered to enter and complete any of these programs, you will be on a very tight leash. If you miss even one meeting, drug test, or appointment, you could be summoned back to court, your probation could be revoked, and you could be given a jail sentence, or more conditions and programs could be added to your probation requirements.
What if I Don’t Do What I Have Been Ordered to Do?
If you are on probation and have received notice of a surrender hearing, or believe you might be accused of violating a condition, don’t wait. Get an experienced lawyer right now. The earlier your lawyer can get involved, the better the change for a good outcome.
If you are placed on probation and you violate one of its terms, or if you are charged with a new criminal offense, you may find yourself punished for violating probation before you know what has happened to you. You will be charged with a violation of probation, and you will have to appear at a “Probation Surrender Hearing.” At the hearing, the Probation Officer will act as the prosecutor. During the “Surrender” process, a judge will make two decisions:
- Did you violate the terms of your probation? And, if he decides you did,
- What will your punishment be?
IMPORTANT: A Probation Surrender is NOT like a trial. You do not have all the same rights. There is no jury. Your fate will often be decided by the same judge that placed you on probation in the first place. The Probation Department only has to prove that you violated the terms of probation by a “preponderance of the evidence”, NOT beyond a reasonable doubt. Hearsay is admissible in many cases at a probation surrender hearing, which means that the evidence used to prove the violation may be only a police report or drug test result.
The Initial Surrender Hearing.
In general, there are two hearings involved when a person is accused of violating the terms of their probation. At the first hearing (the “initial surrender hearing”), you will be brought before the court and formally notified of the alleged violations. At that hearing, your probation officer will typically summarize the allegations against you for the judge, who will determine whether or not there is probable cause to believe that you did indeed violate a term of your probation.
One important issue to be resolved at this initial surrender hearing is whether you will be held in jail without bail until the second (or “final”) surrender hearing. If your probation officer recommends that you be held — and if the judge finds you to be a danger — then you could be taken in custody at the end of your initial surrender hearing. If this happens, you will be held in jail until the Final Surrender Hearing, which could be up to a week later. Needless to say, it behooves you to retain an experienced and competent attorney at this crucial juncture in the case.
The Final Surrender Hearing.
At the second hearing (the “final surrender hearing”), your probation officer will likely be prepared to have witnesses called to testify against you, if they are necessary. Your attorney would have a chance to cross-examine those witnesses, and he may call witnesses on your behalf as well. If there is strong evidence that you did indeed violate a term of your probation, the focus may instead shift to punishment. Sometimes, it might be in your best interests to “stipulate” (agree) to a violation and negotiate a compromise with your probation officer regarding what should happen to you as a result.
As we said above, the violation does not have to be proven beyond a reasonable doubt. Many of the familiar constitutional rights do not apply to probation violation proceedings. Sometimes hearsay is admissible against you, which means there are no live witnesses to cross-examine, only reports or letters accusing you.
If a judge finds that it is “more likely than not” that you violated some term of probation or committed a new offense, then the judge can, immediately, change the sentence from probation to incarceration. That means jail.
What’s more, if the probation violation is a new criminal charge, you can be sentenced to jail for the probation violation, and it won’t matter if later you are found not guilty of the charge that formed the basis for the violation. Once you are sentenced for violating probation, you will have to serve that entire sentence, regardless of what happens with the new charge.
So. . .
Probation, especially for young people, is not a “free ride.” It can be onerous and can set you up for failure and more severe punishment.
It can be a great way to resolve a difficult situation, and many people are successful probationers and go on with their lives. But it is important to know what you are getting into, what could happen if you make a mistake, and what your other options are.
If you are going to court in Massachusetts to face a criminal charge, even if you think, “I’ll just get probation,” don’t go alone. You need an experienced criminal defense lawyer to defend you and your rights, advise you about your options, and to ensure that you are not being set up for serious consequences down the road.