The Dangers of Probation

Over the course of many years spent representing citizens accused of myriad crimes, I have learned many valuable lessons regarding the criminal justice system. One of these lessons is that probation is not for everyone. (For this entry, the term “probation” covers both “straight probation,” which is an actual conviction, the result of which the client serves his/her sentence in the community instead of jail or prison, and “deferred adjudication,” which is not an actual conviction but is a term of community supervision imposed upon a client in exchange for a guilty plea.) Although clients often view probation as a desired plea bargain offer from the prosecution, it carries with it many potential negatives to the client’s life if the probation’s terms and conditions are not taken seriously.

Clients many times ask me, “Mr. Drew, can you get me probation?” I generally answer, “Are you SURE you really want probation?” Often, a client is eligible for a probation offer; of course, one of the advantages of probation is that the client avoids incarceration. (This assumes that the judge doesn’t require days in jail as a condition of probation.) But, the reason why I always ask if the client really wants to sign for probation is that there are generally many terms and conditions associated with probation. Some clients’ lifestyles do not comport well with community supervision (i.e., weed smokers). Some common terms and conditions include a fine, monthly supervision fees, monthly drug tests, community service, various classes, and restitution (where appropriate). If the client doesn’t comply with ALL of the terms and conditions of probation, the probation officer will alert the prosecution. The prosecution will file a Motion to Revoke Probation or a Motion to Adjudicate Guilt, depending on the type of probation that the client is on. Then, a warrant for the client’s arrest will be issued by the court, and the client will be arrested and eventually stand in front of the same judge who gave the client a “second chance” by approving the client’s probation. In most cases, the judge is none-too-happy to see the client’s (now) familiar face.

In some cases, the potential jail/prison sentence for the crime for which the client was placed on probation is capped at a particular length of time. The client could be sentenced for less than this cap, but not more. However, in other probation cases, the client now faces the full range of punishment that he/she was facing at the start of the plea negotiations. That reality – along with a now angry and disappointed judge – can spell big trouble (and a long jail/prison sentence) for the client who did not take probation seriously!

The take-away from this brief discussion on probation is that it can certainly be an effective way to make bittersweet lemonade out of lemons. If a client is guilty – and the evidence against the client strongly tends to prove that guilt – a client may be wise to sign for probation instead of rolling the dice and letting a jury decide his/her fate, which could include incarceration. BUT…if a client is nonchalant about adhering to and complying with all the terms and condition of probation, he/she is better off just taking the hit, doing some time, and moving on. That punishment is often times less harsh than one that results from a probation violation.


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