The Real Cost of Prisons Weblog

“It is much easier to obtain a finding that the defendant has violated his probation than it is to select a jury and present evidence to obtain a conviction beyond the exclusion of a reasonable doubt,” said Circuit Judge Glenn Hess. “When the State Attorney’s Office comes to me and has offered this defendant a plea to probation, the first thing they’re telling me is that person is not a danger to the community in their estimation; that this is a person that, with some work, can straighten out their life. I will accept probation on these basis.”

But the guidelines for probation have changed since 2003, when the Department of Corrections began a zero-tolerance policy on technical violations. Any violation of probation, from missing a scheduled appointment with a probation officer to falling behind in restitution payments, can lead to an arrest and prison term.

Years ago, probation officers would work with a probationer to provide the direction they needed to complete their sentence, he said. Hess now signs many more warrants for probation officers seeking the arrest of a probationer on technical violations. “As a result, my probation docket has gone through the roof,” Hess said.

There are several recent examples of probation deals in serious felony cases resulting in quick prison sentences:

David Randy Polk pleaded no contest to sexual battery on a child in Gulf County in 2000, despite insisting he was innocent, in return for a probation sentence. He violated his probation because he missed an appointment with his probation officer and was sentenced to prison. While in prison, he submitted a public records request to the Florida Department of Law Enforcement and obtained DNA results that exonerated him. He was released from prison last year but is awaiting additional DNA testing to see if he will be released from the charge.

Michael Freebarin and Ralph Woolam, both transients and alcoholics, were given plea deals to probation in 2004 on charges of being accessories after the fact to murder. The pleas came after accused killer George Holzerwood was acquitted at trial. Freebarin and Woolam quickly violated their probations and were sentenced to prison.

Johnny Easterling was given probation in 2005 on three counts of sexual battery on a child in Washington County. He violated his probation by failing to register as a sexual offender and was sentenced to life in prison.

In 2005, the 14th Judicial Circuit, which includes Panama City, had 4,562 people under some form of probation or supervised release — fifth lowest out of 20 circuits in the state. The Department of Corrections did not have more recent statistics.

Department statistics show a gradual increase in judges statewide revoking probation, usually resulting in a prison term, for technical violations, and a gradual decrease in prison sentences based on new law violations. There were about 4,000 more people sentenced for technical violations in 2005-06 than in 2000-01. Over the same period, the number of new offenses that led to probation revocations dropped by 1,125.

Due process

Deputy Public Defender Walter Smith said the “delayed entry program” could be a violation of a defendant’s due process.

“If the prosecutor has a case and the victim doesn’t want to go forward or there’s some other problem, they’ll plead him to probation knowing the guy’s going to violate,” Smith said. “It’s easier to prove a violation of probation instead of the underlying offense.”

Smith said this is not a recent development.

“It’s just one of the dirty little secrets of the criminal justice system,” Smith said.

Smith said he has begged clients not to accept a plea and take a weak case to trial, but the prospect of spending months in jail awaiting trial and possibly spending years in prison if a jury convicts them is a powerful incentive to accept probation. “Nobody wants to run the risk,” Smith said.

The State Attorney’s Office declined to participate in this story unless provided a list of questions in advance. The News Herald uses this method of interviewing as a last resort when extenuating circumstances necessitate it.

Once on probation, Smith said, the demands can be impossible — especially for those who have to register as sexual offenders. Cities within Bay County have expanded buffer zones around schools, churches and parks that essentially have prohibited a person registered as a sexual offender from living within city limits. That makes having a permanent resident, stable income and reliable transportation difficult — all elements that easily could lead to a probation violation.

Smith said the majority of sexual offenders are young men who have had consensual sexual relations with an underage girlfriend. He said the Legislature changed the law this year to require juveniles who have been convicted of having sex with other juveniles to register for life as sexual offenders.

“These laws were enacted to go after dirty old men that go after children,” Smith said. “The net keeps getting wider and wider. A girl with a phony ID is in a bar drinking and a guy picks her up. She’s 17 and he’s 24. He could go to prison for a long time.”

Jonathan Dingus has been on both sides of the issue. As a prosecutor, he offered defendants probation to clear a weak case, with the expectation that the defendant would violate and go to prison.

“Some people we knew were going to screw up,” Dingus said. “Some people we wanted to give them one last chance to prove themselves.”

As a defense attorney, he has seen those same offers come along. Dingus said he tries to explain to his clients the dangers of accepting such a plea.

Dingus said he doesn’t see an abuse of the system.

“I don’t think it happens that often,” he said. “I don’t see people abusing that. It’s not the lawyers; it’s just the system.”

http://www.newsherald.com/headlines/article.display.php?a=2396