When Probation Isn't the Better Option


In an attempt to assuage the soaring incarceration rates and prison overpopulation in the U.S., many courts are opting for probation in lieu of imprisonment. Many areas have some form of deferred adjudication in which an offender agrees to plead guilty but the conviction is set aside until completion of probation. If the offender successfully completes probation, then they will not be convicted for that crime.

Diversion and Intervention in Lieu of Conviction in Ohio

In Ohio, we have Diversion and Intervention in Lieu of Conviction, which you can read more about in the Ohio Revised Code 2951.041. Probation in lieu of a criminal conviction can be a good thing, unless the conditions of probation are unusually strict or inappropriate.

The New York Times recently released an article chronicling the story of a newly married Baltimore woman who was arrested for drunk driving. She had no prior criminal history and the DUI arrest did not involve an accident or any other aggravating factors.

In most DUI cases where this woman lived, offenders are released after the initial arrest if the DUI did not involve an accident or any other aggravating factors. In this woman’s case, her simple DUI (she eventually blew a .09 percent BAC) warranted her a $25,000 bail.

The financial cost of supervised probation.

Probation may seem like a better option than incarceration until you consider the costs. This Baltimore woman had to pay $105 every month for her 18-month supervised probation. On top of that, the judge ordered the woman to pay $70 every week for 26 weeks to participate in court-mandated alcoholics anonymous. There was nothing in her record to indicate that she had a drinking problem.

Other fees.

In addition to weekly AA meetings and supervised probation, she had to pay lawyer fees, court costs, and the cost of her bail ($2,000 bond).

Collateral consequences of probation.

When most people think of collateral consequences in terms of criminal justice, they think of the collateral consequences of a criminal conviction or having a criminal record. The reality is, people can face devastating collateral consequences even if they haven’t been convicted yet.

For example, the Baltimore woman got her driver’s license suspended. She said that her inability to drive contributed to losing her job (she worked 20 miles away). Another condition of probation imposed by the judge required the woman to get the judge’s permission before she moved, so when the woman’s apartment developed a rodent problem, she wrote a letter to the judge letting her know that she would be switching units in her same apartment complex. The judge said that her letter did not constitute a request, and counted it as a violation of her probation. In the end, she wasn’t even able to move to another unit, but she was still charged with violating the terms of her probation.

She wanted to contest this, but could she afford it? Challenging the judge’s decision would mean more court costs, more attorney fees, and more hassle.

How do courts determine terms of probation?

Probation terms can be arbitrary and baseless. For example, this woman was sent to 26 weeks of AA for a simple, first-time DUI even though she had no record of a drinking problem. To find out how courts determine probation in Ohio, visit the Ohio Revised Code Chapter 2951.

Too many terms.

The problem isn’t even always that probation terms are unfair, but that there are too many terms. Each additional term increases the likelihood that the offender will fail in some part. About a third of people placed on probation do not successfully complete their terms.

Eventually, the Baltimore woman in this story just ended up going to jail because she couldn’t afford to stay out any longer. She hoped the matter would be resolved quickly once she turned herself in, but it was another 34 days before she was able to appear before a judge.

People who have not been convicted are spending way too long in jail. For an extreme example, read about Kalief Browder who was held at Rikers Island for three years awaiting trial.

Unusually strict or inappropriate probation is not only bad for the offender, often resulting in exorbitant, unaffordable legal fees, arbitrary conditions, and too many terms, but it’s also a poor use of resources. This woman should have been in and out of the legal system much faster than the 18 months her simple DUI case ended up taking.

Most of our clients have led law-abiding lives up to the point of their arrest, which is why we believe that most of our clients are not likely to re-offend. Because of the long-term consequences of a conviction, we often advocate for deferred prosecution agreements that are fair, save time and money, and save futures.