Probation Violations – Staying out of Jail

As a Criminal Defense Attorney in the Metro-Detroit area, I handle a pretty large number of Probation Violations. With jails overcrowded, Courts in Macomb, Oakland and Wayne Counties are more likely than ever to give someone a chance to avoid taking up a jail bed by serving a term of Probation, instead.

I’d venture to say that pretty much everyone who is put on Probation plans on completing their term without any problems along the way. That is to say, I doubt anyone plans to deliberately screw it up.

Prisoner in Cuffs.jpgEven the best plans don’t always work out as well as originally thought. Unfortunately, a pretty fair number of people who had been placed on Probation receive notice of a Violation and have to go back to Court and face the Judge who originally gave them this break, and answer for either doing something wrong, or not doing something they were supposed to do.

I’d likewise venture to say that anyone who has to face a Probation Violation Hearing knows “that sinking feeling” in the pit of their stomach when they think about facing that Judge again.

Now I wish I could say that there is some “magic” solution which will make the whole thing all better, but the truth is, there is not. That said, it does not mean things are hopeless, or even bleak. Lots can be done to avoid jail. As we’ll see, it’s all about “alternatives.”

Imagine for a moment that you were the Judge who sentenced you. Whatever else you did or said, there was an understanding between you, the Judge, sitting on the bench and the person standing before you (the Defendant). Whether spoken or not, it comes down to something like this: “Stay out of trouble, and do these things that have been ordered, and I won’t put you in jail. If you get in trouble while on Probation to me, or don’t do any of the things I’ve ordered, you’ll be back in front of me to be punished further, and that means I might well lock you up.”

Fair statement, right? Okay, so now something went wrong. Maybe there is a new arrest, or maybe there is an outstanding balance of money due to the Court. Perhaps Community Service wasn’t finished (or started!), or perhaps some Classes or Counseling wasn’t completed. Whatever the allegation, it’s usually not good.

So, if you were still the Judge, what would you to do the person in front of you for Violating their Probation? Chances are, you’d not be at your most patient and forgiving, and hearing “I’m sorry” and “it won’t happen again” is only going to make you madder. After all, you’ve already heard that from this person. Been there, done that.

So what happens at a Probation Violation hearing? Well, and it almost goes without saying, but it depends on what’s alleged as the violation. If a person is being “violated” for something they truly did not do, then their Lawyer will attempt to convince the Judge that what’s alleged is not true. In other words, the person is not in violation of their Probation.

In cases like those involving picking up a new charge, or where the person clearly has not done what they were ordered to do, the emphasis focuses shifts to having the Lawyer present alternatives to incarceration to the Judge.

It’s not too fancy, but the truth is, at this point, your Lawyer better be able to sell air-conditioners to Eskimos. In other words, all the legal finery goes out the window and your Attorney better be able to get that Judge’s attention, right out of the gate, and present solid alternatives to just locking you up. Your lawyer better be all the things you’d want in a lawyer: Well-spoken, charismatic and persuasive. He or she better be a smooth-talker. If your attorney is just going to mumble and drone on about how sorry you are, you might as well save the money and bring a toothbrush.

A Judge needs to hear, of course, that you regret whatever it is that got you back before him or her. However, I also think it’s fair to say that it also needs to be explained to the Judge that whatever you did or didn’t do, it wasn’t because of some lack of respect for him or her or because you didn’t take them seriously.

Likewise, since the point of a Probation Violation is to determine what kind of punishment should be handed down by the Judge (assuming the Defendant did, in fact Violate their Probation), your lawyer better be able to present any number of alternatives to Jail. For example, if I know a client is seriously facing a jail term for a Violation, I will often propose that the Judge place them on a Tether (also called “House Arrest).

So how do you know who to hire? Use your ears. If you’re talking to a lawyer who doesn’t sound very convincing or enthused, chances are they aren’t the one for you. Just because some lawyer got your friend out of a fix does not mean he or she is the right person for this job, either. I’d always suggest calling around and talking to (or emailing) as many Lawyers as you can, until you find one with whom your comfortable, and in whom you have confidence. Of Course, you can (and I think should) always contact me, as well.