Are you ready for probation revocation guidelines? It sure sounds like the Legislature is ready.

You can expect over the next few weeks to see the Legislature restricting the discretion of judges and prosecutors to revoke probations.

This is all being done under the guise of saving money. But the savings are imaginary. Absent real places to send probationers who violate conditions, the Legislature is only keeping chronic criminal violators out where they can commmit crimes.

I guess the legislative minds who are working on this haven't considered that if they restrict our ability to revoke probationers who are deserving that the end result may be that we outside of Austin, as prosecutors, jurists, and jurors, may well be less willing to put someone on probation. Also, as prosecutors, we frequently have to explain to our victims or the public how, in a given case, probation is a good option. If we have probation sentences that will not be revoked except in unusual circumstances, it will make that a more difficult job and likely result in more prison sentences.

Also, if we can't revoke the probation but the person is violating the terms of his probation, we would need to come up with a new name for the current "Motion to Revoke Probation" (Community Supervision). I would suggest something like "Motion to Declare Oopsy Daisy" or "Motion to Require Convicted Felon to Apologize for Giving Judge the Finger".

Expect to see directions for more criminals on supervision, for shorter periods of time, and the place for sanction of non-compliant crooks will be the county jail. Remember when the answer to SAFPF backlog and expense was to reduce the number of facilities while reducing treatment time so as to get greater turnover in the facilities. Same thing will be the goal for probation generally: fewer revocations resulting from shorter probation terms and required early terminations. More criminals on supervision for shorter periods with fewer programs and less funding from Austin for CSCD in your town.

And what about the majority of defendants who mangage to complete probation successfully? With less chance of a meaningful sanction as motivation, how many fewer of them will get any benefit out of probation? I've only heard the horror stories about the last round of prison-crowding being the tail that wagged the criminal justice dog: seems like I'll get to see what it really looks like here pretty soon.

If the goal is to treat similar probation violators in a uniform manner, reasonable guidelines may be a method to do so. A probationer who spits on a sidewalk in one county and another who commits a new felony in another county should not be treated alike. Requiring judges to assess county jail time as a condition of probation for minor violations prior to sending them to prison may make sense. The devil is always in the details: the definition of a "minor violation".

I have never known a probationer to get sent to TDC for spitting on the sidewalk.

In fact, I can't think of a case where a probationer got sent to TDC for technical violations, unless Motions to Revoke were filed 2 or more times, on earlier technical violations, and he had spent some time in the county jail before being put back on probation.

I've asked a couple of defense attorneys who handle cases in a great number of counties if they knew of any court that had a practise of sending probationers to the joint for 1st time technical violations. Neither man had ever heard of such a case.

The only case where a judge hammers probationers with pen time on their first technical violation that I have ever heard of, was the example Sen. Whitmire uses, out of Harris Co.

How about y'all? What is the practise in revoking probationers for technical violations in your jurisdiction? My bet is this: the overcrowding in TDC is not caused by probationers getting shipped to the joint for being 15 minutes late for their probation meeting; it's caused by the increase in criminals in our state, which in turn is caused by the increase in population, since our last prison was built, about a decade ago.

This subject really gets me riled. And it is another example of how ignorant the general public is about the criminal justice system.

Our office often sends those 1st time "technical" probation violaters to prison. And I am offended by those who would condemn us for doing so. The fact of the matter is that our judge is rarely asked to make the sentencing decision on a revocation, because all of the attorneys around here know that he takes the matter quite seriously.

A guy spends a few months in jail, makes bond, pleads out to probation, then disappears after a few months. He's just a "technical" violator. The bleeding hearts would have the public believe that sending that guy to prison is an injustice. Nevermind that he has not yet been punished for his crime. And he spent time in jail on the front end, yet that didn't get our point across. So what would be the point in putting him back in the county jail for a while, then giving him yet another second chance? Isn't the probation supposed to be the second chance? My argument to attorneys who ask me to reinstate those poor, helpless (hapless?) probationers is that to do so would only delay the inevitable.

It is unfortuate that there are so many criminals in our society. I have no doubt that we would all gladly surrender our careers in exchange for a crime free society. But that ain't gonna happen. How many of you have prosecuted a criminal about which you can honestly say, "If only our schools had taught him more about the consequences of the choices he made in his life."? The government didn't break all the people we deal with, and the government can't fix them. Guns or butter? I'm for the guns. Paying for more prisons is not fun, and I don't know where the money will come from. These days I sometimes say the same thing about filling up my car with gas. But I still fill it up -- because it has to be done.

That was cathartic.

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A probationer who spits on a sidewalk in one county and another who commits a new felony in another county should not be treated alike. Requiring judges to assess county jail time as a condition of probation for minor violations prior to sending them to prison may make sense.

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No offense, but in my opinion, the program is called Community Supervision because the standards of the community should obtain. If the Judges and prosecutors who answer to their communities are not able to vindicate the local standards, we should do away with elections and let the Governor, with the advice and cosent of the legislature, appoint them. I place defendants on probation in my court for offenses I might not in another. I know and rely on the fact that my judge will revoke them if they fail to comply with their terms and conditions. If our discretion is restricted then I expect that our trial dockets will expand.

As to Terry's question: Yes, we occasionally revoke on technicals, if you construe an absconder to have committed technical violations.

We revoke on technical violations most of the time, but we rarely send them to the pen if the probationer missed reporting one month. We will extend his probation to the full 10 years, and/or we may require him to spend a mo. in the county jail. If he has a dirty urine a couple of times, we'll send him to SAF-P, and extend his probation. But if a probationer proves to be a slow learner--& continues to violate probation--we send them to the pen. And if a probationer simply abscounds, then of course he's sent to the pen.

So my question is: do you send to the pen the first time a probationer violates a condition of probation in all cases, or do you use intermediate steps with lesser probation violations?

If the county jails are used as an "intermediate sanction" for felon probation violators, where am I supposed to put the misdemeanor violators? When we had round one of all this a few years ago, I asked a legislator about that and was told that no misdemeanor offender should be in jail. Hmmmmm - so what do I do, spank him?

My standard offer as a misdemeanor prosecutor is for probation; if the person was merely stupid, it is a few months of hassle; if they are really bad, they land in jail for blowing the terms (yes, I'll put them in for "technicals"). My rationale is that, if they know that a minor blip on a misdemeanor probation landed them in jail, a blip on a felony is likely to be more serious. PErhaps they will think twice before violating that probation.

It seems to me that those technical probation conditions are about the only things, in most cases, that distinguish "probation" from "freedom." If the Leg. imposes these guidelines, I guess probation will basically amount to a stern warning not to "do anything like that again." So the next step, after we start doing fewer probations in order to make sure there's still some genuine punishment, will be to start lowering punishment ranges?

If the Legislature is inclined to formulate restrictions on the judges and prosecutors in these situations, what can we actively do to influence that.............?

As someone said, the public is unaware of just how many people on probation are getting 2nd, 3rd and (oftentimes) 4th chances to follow the rules. I think the average citizen would be outraged to know that someone broke the law and when put on probation, got to mess up as often and in whatever fashion (be it technicals, new offenses or an absconder) before a Judge finally let them "feel the heat" of pen time. And now you're telling us they want to take that possibility away.

Is there anything we can do to influence where this appears to be heading.............(downhill)

The simplest and most direct method for influencing the law on this issue is to contact your state representative and state senator. Talk to them on the phone and express your opinion. Follow up with a letter explaining the problem and your position.

In addition, the elected DA should write to local newspapers with an editorial explaining that probation is a privilege and that violations should lead to consequences.

Finally, watch for when the bills making these changes surface (I suspect the authors are holding back until the last possible moment, knowing there will be a backlash), contact the author and express your opinion in writing. Then show up and testify on or against the bill.

Prosecutors individually have to make their positions known to have a say in the legislative process. TDCAA is not a lobby. TDCAA simply keeps its members informed and educates them on how to be effective.

From the probation overhaul article on the main page, I think Rep. Turner's statement sums up what we can expect on this:

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Subcommittee Chairman Sylvester Turner, D-Houston, likened the changes to how his parents raised him and his eight brothers and sisters.

"Some of us would get out of line, and we would be told, 'That was wrong. Don't do it again.' And they let us go about our business," he said. "For those who needed closer supervision, they would keep a hand on us and an eye on us.

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At least he's being honest. Good to know we'll at least be able to tell criminals not to do it again!

I only see first-time technical violators if their case is a serious one that we had to probate for some reason other than the facts. The vast majority have already had "jail therapy" or have been amended for drug treatment or the like. When a petition generated by CS/CD lands on my desk alleging hot UAs, the defendant has either previously been offered drug treatment and turned it down or has been terminated from treatment for non-attendance. If a defendant is offered treatment , refuses and is later testing dirty he is generally revoked. I find that almost all dirty UA violations are coupled with failure to report. We have begun using TDC bootcamp in a few cases. Any violation by a sex offender, however slight will result in the filing of a petition and I usually seek revocation.