The client charged with a felony and scared about the potential incarceration is usually only concerned about receiving a probationary grant. However, in many cases they really have no understanding of what probation entails.
In 2013, Maricopa County Adult Probation had 21,000 individuals under supervision and another 53,000 individuals under its expanded jurisdiction. Probation can run a maximum three years for misdemeanors (exceptions are DUI for up to five years). For a felony, probation can run up to seven years. If it is aggravated DUI, it can run for 10 years. Any sex offense or crime committed with sexual motivation can result in lifetime probation.
At sentencing, the court has options to place the defendant into any type of probation. There are also specialty probationary programs and terms for domestic violence offenses, drug offenses, DUI, sex offender offenses, white collar, mental health, and most recently, Veteran’s court.
In addition to determining the type of supervision, the court must also determine the terms of incarceration, any type of work furlough or release, community service, curfews, computer usage, etc. Our job does not end when we obtain a probation grant for our clients.
Understanding Probation Terms First, we must review the probation terms with our clients. The sentencing judge will quickly order the defendant receive standard terms of probation. They are numerous and in writing. But the court rarely elaborates on the terms. It is expected that probation will subsequently go through the terms in detail, but that should really be our job.
When special terms of probation are at issue, I normally provide the terms of probation at the same time I provide my client a copy of the plea offer. In that way, they are fully apprised of the potential probationary terms they could face. And, as a practice pointer, being familiar with the terms of probationary supervision will allow you to negotiate which terms, if any, may be required and which can be left to the discretion of the court at the time of sentencing.
Incarceration: Work Release and Work Furlough If convicted of a misdemeanor, one can receive up to six months in jail. If convicted of a felony, one can receive up to one year in jail. The benefit of probation and a jail term is that most offenses will allow for some form of work release or work furlough. If denied probation and sent to prison, any mechanism of maintaining their current employment is not possible.
Most misdemeanor courts will permit work release when ordering a probationary grant. For work release, the court will set the terms of release. Generally there is no supervision by a probation officer.
For a felony, work furlough is ordered as a term of probation. Work furlough is approved by and monitored by probation. As a practice pointer, you need to make sure the court orders your client into work furlough rather than just authorizing the defendant’s entry into the program if permitted by probation. You also need to make sure they are screened for work furlough prior to sentencing.
The court cannot force the jail to comply with its work order. If the jail precludes the defendant from the general population, the defendant will have no access to enter and exit the jail for work release or furlough. This restriction often applies to defendants with medical conditions, mental health issues or those that have been convicted of a sex offense. So even if the issue is permitted by the plea agreement or ordered by the court, work release and furlough may be denied by the jail.
As a practice pointer, the defendant’s inability to work while in custody must be used when engaging in plea negotiations. The fact your client will be serving flat time with no work may allow the prosecutor or court to consider a lesser term of incarceration.
Advice to Clients on How to Deal With Probation Advise them to keep a written log of all communication with probation. If a probation violation is filed, their only defense may be the accuracy of their notes versus the claims of probation.
Terms of probation can be modified. If your client requests to deviate from a probation term (seeking permission to miss a counseling session, curfew or traveling issues), they must follow up with probation in writing by confirming email or letter that accurately summarizes the issue and what they are now allowed to do.
If their reasonable request is denied, they must also confirm the denial, and indicate they will follow orders denying the request. However, they should always ask why the request was denied. The reasoning may permit a judge to overturn their decision.
They must keep duplicate records for every payment and every completion certificate obtained.
At the end of probation, they cannot take the probation officer’s word that they formally completed probation. They must verify the court entered a formal order of discharge.
Once discharged, and if permitted by law and within the bounds of the plea agreement, they need to make sure their matter was formally ordered reduced to a misdemeanor.
Once discharged, they need to apply to have their conviction set aside and their civil rights reinstated.
Failure to comply with probation terms can result in their probation being revoked and being ordered to serve additional jail or prison time. There are ways to challenge probation and, in some cases ways to terminate probation early. The records they have kept can make a substantial difference in how the court resolves a probation violation or request to terminate probation.