Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

The Boston Criminal Lawyer Blog Discusses The Truth About Probation Surrenders

It is Thursday and so, as any regular reader of the daily Boston Criminal Lawyer Blog knows, it is time for another Attorney Sam’s Take discussion about an area in the law which effects those who have found themselves involved in the criminal justice system. Today we examine the truth about being on probation.

If you have not experienced it yourself or through a loved one, probationary circumstances generally come about in one of two ways. The first is, after being re-named “Defendant”, one is allowed to await trial unencumbered by steel bars.

While this type of probation generally has no extra conditions (except keeping away from the complainant if there is one), it can have conditions. The one condition it always carries, however, may seem obvious…but the consequences usually are not. This is the condition of not getting arrested, or gifted with new criminal charges, while in this “bail” posture. What many people do not realize, although the court is now required to tell them upon the continuance of the case, is that if they do pick up new charges, they can be held on the present case in custody without any bail for up to 60 days.

That’s right…I did not say “convicted”. I was talking about simply being charged. For those of you scratching your heads, sensing an inconsistency, you are correct. This would mean that you could be held in custody without any bail on a matter in which you are still presumed innocent because you have been merely accused of another crime…of which you are presumed innocent and will not even face trial for a number of months.

As I have many times explained, simply being charged is the violation. It does not matter that you have not been convicted of anything.

Thinking about it, it does make sense in a way. It serves as a good introduction to the concept of the probationary status. After all, most criminal cases end up in some kind of plea agreement. Many of these involve a probationary term of some kind. It is good to get a sense of one’s position while on probation from the start.
In a word, the position is precarious.

On that day that the Defendant is told, “I have great news for you. I can arrange it so that this can all go away and you do not have to go to jail. You just have to be on probation for about a year and then it is all over”, the defense attorney often seems to be shrouded in a warm glow as he walks, feet actually seeming to be inches from the ground. Everybody appears to be happy. Hard times are over, as the song says.

Or are they?

In some circumstances, the sentence of probation is, indeed, a gift. This is not true, however, in every case. It is certainly not a risk-free gift, except in the unusual circumstances when it is accompanied with no admission of guilt and part of a “Pretrial Probation” arrangement. Even when that probationary term is part of a Continuance Without A Finding (where the matter is continued with no finding either way for a period of time and, if there are no violations, the case is dismissed), there is a risk of a very sudden finding of guilt and imposition of sentence given any perceived violation of that probationary sentence.

According to the cases, Probation is granted “with the hope that the probationer will be able to rehabilitate himself or herself under the supervision of the probation officer.” See Commonwealth v. Sheridan, 51 Mass. App.Ct. 74, 77(2001). While various statutes control aspects of the probationary experience, General Laws Chapter 276 sets the stage and gives the court the authority to place someone in the care of a probation officer.

Given that the probationary status begins with the assumption that probation is in existence to “rehabilitate” the probationer, it is not a surprise that probation officers are given a fairly wide area of discretion as to what is necessary to “fix” the probationer. This sets up a collision of perspectives from the start. The probationer does not usually feel he is in need of desperate fixing; the probation officer begs to differ. However, the probation officer is overworked…having so many probationers of which to keep track. As with most of us, the probation officer only gets 24 hours in a given day. Some of the probationers consider it an occupational requirement to play games with the probation officers and see how long the games can continue before they are given up on by that probation officer. In reaction to this, the probation officer learns to be suspect of the probationers because there is simply not enough time to read the minds of each and every probationer to see if, indeed, they are being honest with him or her. The result? Often an approach of instant suspicion with most probationers. That is, unless and until the probationer proves himself to be trustworthy.

Kind of sounds like being assumed guilty unless and until being proven innocent, doesn’t it? Hmmm….why does that sound familiar…?

Meanwhile, the new probationer still believes that he or she is an individual and should be respected and considered as such. “If the probation officer is there to help rehabilitate me”, the thought goes, “he/she should…”and a long list follows. The probation officer, however, has likely lost the inclination to study that proposed list a long time ago.

And so the relationship often begins in an uneasy status.

However, the bottom line of the relationship, as we have discussed in many previous blog postings, is far from equality. It comes down to a probation officer telling the probationer to do certain things. If the probationer does not do these things, the probation officer moves to “surrender” the probationer. This means that the court is brought in once again and the probation officer ends up arguing that the probationer has violated the probationary status and should derive some sort of extra penalty, often going to jail.

“Well, Sam”, you tell your computer monitor, “I understand all that. But there must be limits as to what the probation officer can tell the probationer to do, right? I mean, it has to be reasonable.”

You are correct. The only problem is that reasonableness is in the eyes of the beholder.

In the probationary situation, it is the probation officer’s sense of what is reasonable that controls. True, there are circumstances in which the court will over-rule what the probation officer wants. However, these are in the vast minority of situations.
To be blunt, during the probationary period, the probation officer is the one in charge. Period. Unless you want to take your chances of going before the judge and risking being sent to jail or given even more conditions.

“Well, that sounds unfair”, you say.

Maybe. But it is the reality.

It does seem to make sense, though, in a system in which you are presumed innocent, but can be locked up for violating probation by being accused of a new crime in which you are presumed innocent unless and until a guilty finding may occur many months down the line.

Head hurt yet?

Congratulations! You are beginning to understand the criminal justice system.

And, by the way, this probationary relationship is the case whether you have been accused of operating under the influence, robbery, assault or some white collar crime. It is even true in sexual assault or homicide cases in which you were lucky enough to get probation. Of course, in such cases, the probation sentence probably was a gift.

This is not all to say that you should never accept probation as a sentence in a criminal matter. It does mean, however, that you should think about it and discuss it in detail with the hopefully experienced criminal defense attorney who is representing you to make sure you understand the parameters of your soon-to-be very close relationship with the Department of Probation.

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