The Empty Threat of Probation

originally published July 18, 2008

When a judge puts a convicted criminal on probation it comes with a condition: that he follow all the rules that probation requires. The Baltimore Sun’s July 13th story on the Violence Prevention initiative instituted by the O’Malley administration (which didn’t get the credit) describes the efforts of probation agents to ride herd on violent criminals, reporting each of their probation violations to a judge and asking the judge to lock them up.

The story reports the judges’ discomfort with the initiative, summed up this way by the headline writer: “City judges say probation plan erodes discretion.”

What baloney. No one has the power to make the judges do anything. Probation agents can only ask for warrants. Prosecutors can only ask for jail time.

It’s not about loss of discretion. Judges just don’t want to lock up criminals for what they consider to be minor probation infractions. They have created and sustained a culture in which a criminal practically has to commit the same offense again in order to go to prison. By then, of course, it’s too late.

Once I sent a prosecutor to handle a violation of probation hearing for a defendant who was on probation for robbery. His record included three felony drug convictions, two robberies and a handgun violation. He absconded from supervision and failed to pay restitution to the robbery victim, so the judge issued a warrant. It was served when police arrested the defendant for assisting in a drug deal. That case was dropped when the police officer was late for court, but I summoned the officer to the violation of probation hearing to testify to the drug offense.

The judge announced that he would not hear any evidence of a crime without a conviction. So the prosecutor tried to revoke probation on the absconding and restitution violations, asking for the 10 years that had been suspended. Instead, the judge continued probation and let the defendant go. The prosecutor begged me to never send her to his courtroom again.

Who was this judge? John P. Miller, Judge-in-Charge of the Criminal docket and chair of the Baltimore Criminal Justice Coordinating Council. Here is what Judge Miller told the Sun about the Violence Prevention initiative:

“You cannot get by by saying, ‘This is a person we think is a bad guy and let’s go back and revisit his sentence.” The technical violation, does it rise to the level of saying, ‘I go back and resentence you on the original matter?’ That is what you are saying. That is not the purpose of a violation of probation.”

What an extraordinary quote. First, the judge doesn’t know that a violation of probation sentence is not a “resentence” on the original crime. Second, placed in the context of the probation hearing I described, Judge Miller admits that for him, the defendant’s background is completely irrelevant to the probation sentence.

This is exactly why so many judges do little or nothing on probation violations. They want the violations to be so serious that they can justify sending someone to jail on the act that constituted the violation, instead of for violating probation itself. They ignore the crime for which probation was imposed in the first place.

In most probation cases, a judge will impose a jail sentence that is appropriate to the offense, and then suspend all or a part of it. In Baltimore this is often done to move cases along, part of the plea bargaining process on a crowded docket. A defendant is always required to obey the rules of probation as a condition of not going to prison. All of the rules except the one to “obey all laws” (and certain special conditions) are commonly referred to as “technical” rules as though they aren’t important, rules like reporting to a probation agent and reporting new arrests. A defendant who does not follow the rules can have the suspended sentence imposed. He is not “resentenced” for the original crime.

Too many judges pay no attention to the “technical” rules, which are there to make sure the defendant is on a law-abiding path. Many also don’t care about new “minor” offenses. For example, if a person on probation for dealing drugs with a handgun is convicted of trespassing, many judges will either not revoke probation or will impose a minimal sanction. They have completely forgotten that the defendant was a gun-toting drug dealer who was lucky to be returned to the street in the first place because the courts can‘t try all their cases, and who was supposed to follow the rules. They don’t care that they undermine the purpose of probation itself when they shrug off new “minor” convictions or “technical" violations.

I am not advocating that a judge send every probationer to jail for any violation. I firmly believe in judicial discretion. If the gun-toting drug dealer’s trespass arrest was for cutting though posted property on his way to his stable job, by all means continue probation. But if he was hanging on the drug corner, sitting with drug dealers on people’s steps who complain to the police, if he ignored warnings to stop, he should get his time, the time he deserved to get in the first place. He was not on his way to a law-abiding life, but back into the old life.

Baltimore’s judges--with some exceptions--have used their discretion to let violent criminals walk for too long. They haven’t used it to distinguish between the dangerous and non-dangerous, and they have lacked the guts to lock up dangerous criminals for not following the rules.

Judge Miller claims that probation hearings don’t exist to put dangerous criminals away. He has it backyards. When they fail to follow the rules, it’s criminal not to.

A Dozen Examples of Judge John P. Miller’s Use of Discretion in Violation of Probation Hearings

Judge Miller dismissed violation of probation charges in a defendant’s felony drug case after the defendant was put on probation again for a new armed robbery case. (This illustrates the judicial principle of “If the other judge didn’t do anything to him why should I?”)

Defendant was on probation for a handgun violation. He was convicted of drug possession and Judge Miller imposed no sanction for violating probation. He then was convicted of drug possession again, and again Judge Miller imposed no sanction for the probation violation.

Defendant was on probation for armed robbery and picked up a new robbery charge along with drug possession charges. He also had failed to perform 100 hours of community service. He got 18 months in the drug cases. Judge Miller imposed 2 years out of a possible 4 years, running the sentence concurrent to the drug cases. A concurrent sentence means that they are served at the same time. This got the defendant an extra 6 months for violating probation.

Judge Miller found the defendant guilty of violating probation for not reporting to his agent and other “technical” violations but refused to sentence him until after a new drug case was resolved. The defendant was on probation for armed robbery with a suspended sentence of over 9 years. When the new case was dropped, Judge Miller sentenced the defendant to time served (3 months and 25 days.)

Defendant’s probation was for possessing a gun in connection with drug dealing. He was arrested again for dealing drugs after he had stopped reporting to his agent. Judge Miller did not wait for the new sentence this time. He imposed all of 6 months out of a possible 3 ½ years, which the defendant served while waiting for the other case to resolve.

Defendant was on probation to Judge Miller for rape in the second degree. His new drug case was also handled by Judge Miller, who gave the defendant another probation for the drug case and nothing for violating his probation.

The defendant had not reported to his probation agent for two years and was arrested for drug possession and giving a false name. He was convicted on the false name charge. Defendant was on probation to Judge Miller for two armed robbery cases and was exposed to 16 years in prison. The judge dismissed the violation of probation case.

Defendant was on probation for statutory rape. When he was convicted for the same crime again in Baltimore County, Judge Miller imposed a suspended sentence for violating probation and put him back on probation.

The defendant failed to perform 20 hours of community service on his handgun probation and was convicted of a new drug possession charge, getting another probation. Judge Miller dismissed the violation of probation in the handgun case and terminated any further probation.

Defendant’s probation was for a felony drug violation with four years suspended. He then was convicted of another felony drug crime, but Judge Miller did not issue a warrant until he was arrested again for robbery. The robbery case was dropped but the defendant got 4 years in the new drug case. Judge Miller decided to dismiss the violation of probation.

Defendant was on probation for armed robbery and could get 13 years if he violated. He was arrested on felony drug charges and new misdemeanor drug charges. He had failed to report to his agent for 8 months or to pay $2500 in restitution. Prosecutors asked Judge Miller to revoke probation and impose the suspended sentence while the other cases were still pending, but Judge Miller refused. He waited until the defendant got 18 months on the felony drug case and then imposed only 3 years, making it concurrent. That added 18 months (of the possible 13 years) to the sentence in the new case.

While the defendant was on probation to Judge Miller for a handgun violation he was convicted of a felony drug crime. He got 5 years in the new case. This time Judge Miller imposed all the time that had been suspended--two years--but ran it concurrently to the new sentence, resulting in no additional time for the probation violation.