Pay now, or really pay later! In all my years practicing criminal defense, I often question why so many people accept probation knowing they will never complete it. I will sometimes ask clients why they want probation. Generally, they accept probation because they want to get out of jail or want to avoid going to jail. They make a promise to complete all the terms and conditions, knowing but not fully realizing the penalty will only get worse if (and often when) they violate probation. I want to fully explain probation in hopes that people who read this will prevent someone from accepting probation when it is not appropriate for him or her.
So, what is probation? Probation is outlined in Florida Statute Chapter 948. Generally, probation is a form of court-ordered supervision where a probation officer ensures compliance with terms and conditions ordered by a judge. These conditions include payment of fines and court costs, drug testing, completion of classes or counseling, no possession of firearms, no new arrests, and other conditions as appropriate. A probationer gives up 4th Amendment rights for search and seizure purposes. His or her body, vehicle, and home can legally be searched at any time by a law enforcement officer or a probation officer. Probations must also pay supervision costs as well as regularly report to the assigned probation officer. Any alleged violations of the probation can result in the probationer’s arrest (often without bond) until an admission of guilt is obtained or a hearing to establish guilt for the alleged violation. Violations of probation are determined by the standard of willful and substantial violations and do not require proof beyond a reasonable doubt.
Why does the prosecutor want a person to accept probation? A common reason for probation is to ensure a defendant pays restitution to the victim. The threat of going to jail is motivating to ensure a defendant pays restitution and the payment can be easily verified by the probation officer. Also, the prosecutor can, and often will, ask for more jail time than what was originally offered if the probationer fails to complete all the terms and conditions. Finally, people are often placed on probation for longer periods of time than required jail time. An example is a defendant is sentenced to 2 years on probation when the defendant probably would have served around 6 months jail time.
So, why shouldn’t defendants accept probation? Probation is designed for people who are not likely to engage in criminal conduct (people who are responsible and have stable lifestyles). For first time offenders (or people who have gone several years without incident), probation is an ideal way to resolve a case; however, for most other offenders it simply does not make sense. It is expensive (monthly supervision costs and costs for classes or drug testing), intrusive (must submit to random searches of house, car, and body), time-consuming (regular reports are required), and restrictive (cannot leave county or state of residence without permission, sometimes curfews are imposed). Please do not accept probation if you cannot complete it. Swallowing the pill of jail time upfront is often hard, but it is easier than serving even more time in the future.