Friday, May 29, 2009

Probation Revocation For Drinking a Beer

During the past several decades, we have locked up an increasing number of people in this country. As a result, more jails and prisons have had to be built, with taxpayers footing the bill.

Obviously the "war on drugs" has played a role in the increased incarceration of Americans. Many reformers suggest that the "war" has been counterproductive and suggest treating drug offenses as more of a public health issue, than a criminal issue. They suggest that decriminalizing things such as marijuana possession would reduce the need for more jail cells.

While taking a look at that issue has some merit, what about the criminalization of LEGAL behavior that leads to re-incarceration?

Let me explain. Many people do not know that courts routinely impose probation conditions that require that those released abstain from alcohol consumption. It does not matter if the offense that led to the probation had anything to do whatsoever with alcohol consumption. If you were convicted of bouncing a check, receiving stolen goods, etc. you could well end up on probation with one of the conditions being that you can't consume alcohol. As a result, it you drink a beer and end up with a surprise urine test the next day, you will quite likely find yourself back in jail.

Many of the probationary periods are quite long. I know one person convicted of theft, who is out on two years probation. He had a couple of beers after a long day of work. Now he is looking at another 15 days in jail. His criminal history shows no abuse of alcohol whatsoever.

You would be shocked by the number of people incarcerated for daring to have a drink while on probation.

Judges should not be imposing alcohol restrictions on probationers when the offense have nothing to do with alcohol consumption. Taxpayers are footing the bill when these individuals get sent back to jail.


Doug said...

I agree that it's a good question whether alcohol prohibitions should be a standard part of probation orders for offenses unrelated to substance abuse. But, after someone agrees to the ban on alcohol as a condition of probation in lieu of continued incarceration, I have a hard time faulting a judge for sending the person back to jail for violating the order after it's been entered.

Any idea if anyone tries to petition the court to modify the alcohol ban out of the probation order after a period of good behavior and where there was no use of drugs or alcohol involved in the underlying crime?

Paul K. Ogden said...

I'm not aware of any time someone has petitioned to modify in order to drink.

I'm not liking the whole - "Well you agreed to the no drinking deal when you agreed to probation" - contractual type argument. It's not like you have two parties with remotely equal bargaining power. Is the Defendant going to serve two extra years in jail because he won't agree to not drinking a beer ever during those two years? They have you over a barrell when it comes to signing plea bargains.

What I guess I'm saying is that the probations conditions should be related to the crime committed or some rehabilitative effor.

Leslie Sourwine said...


If someone is on probation for a year and they are accused of violating the probation doesn't the court have the option of either leaving the person on probation or making them serve the suspended sentence? Does the probation period start over and last a number of years if you are accused of violating it more than once? Does the court have the authority to do both? Extend the probation period and serve the sentence? Where do I find the rules on this issue?

Paul K. Ogden said...

Leslie, I'm pretty sure when they revoke probation, the person can be ordered to serve part or all of his remaining sentence.

Our friend was convicted of a misdemeanor DUI which couldn't have been more than a year sentence. Yet he's still on probation over three years later, and has been held in violation and reincarcerated? I don't get that - maybe probation can extend beyond the length of the original sentence. But the four new charges that have been pending for over two years, with pending speedy trial motions that the court has just ignored while leaving him in jail, well that is even more strange. I hope to write somethiong on this, maybe this weekend.

Leslie Sourwine said...

Exactly my thoughts Paul. In my thinking it is like he has faced double jeopardy more than once by being punished both by being re-incarcerated but also by not terminating the probation. The suspended sentence was for 363 days with 1 day served. He has since been incarcerated that many days and more. Maybe I can find something on it that will discuss the rules. I'll keep looking. The other 4 cases pending they cannot punish him before conviction. If I understood correctly he is now incarcerated on the older probation violation.
Looking at the court record the old disposed case originated in F10. On 9/5/06 it was transferred to F18. Why? I thought the case begins and completes in the same court room until it’s disposed. The probation period started in 3/06. That was three years ago!

Leslie Sourwine said...


I'm not an expert but I think our friend may have a tort situation.

When you are placed on probation and it is then revoked you are no longer on probation if you end up serving your time. I don't have access to the official court record to see exactly what each court appearance was about or if the court imposed the sentence. But the fact is the sentence has been served! You either serve out your probation the number of days or years ordered by the court or you serve the sentence. If you serve the sentence they cannot later put you back on the original probation! I'm sure of it.

Paul K. Ogden said...

As far as how the cases get assigned to the particular courts, there basically are no firm rules. Each county operates differently. They have a lot of flexibility in terms of how they handle cases.

My understanding is that our friend was incarcerated for a violation of his original case on which he was on probation. That would require over three years of probation on a misdemeanor. Very strange.

They can set some conditions on pre-trial release on the other four, but I'm not sure how far they can go. That issue I'm a little shaky on. The issue of the Criminal Rule 4 and the four cases being well over the time limits contained therein, is something I'm a lot more familiar with. Those cases aren't even close, especially the three where he's filed speedy trial motions.

Leslie Sourwine said...


In Marion County I am certain the case assignment is random. I just thought it was unusual to see a case transferred after the defendant was already in a court room on random assignment. When the first probation violation occurred because of the letter of intent to sue sent to the police officer I would think it would go back to the judge and court room it was originally assigned to. On 3/26/06 he was placed on 1 year probation. Sentence suspended of 363 days. That case was from August 05.
But looking at the court records I have it says he violated PTR by having alcohol in urine. That’s not what he was accused of. They claimed he had THC in his urine. Although there were independent UA’s that were all negative as well as those UA’s submitted to EMS being negative. Although the EMS people were supposed to testify at the hearing they did not. Only the woman from the probation office who wasn’t his probation officer came to testify. Paul I don’t think they brought anything in as far as tests results to admit into evidence against him. Judge Goodman was the judge on the bench at the 4/29 hearing and the record shows the EMS people were to be notified by the bailiff to be present at the next hearing. On 5/20 Judge Hill was on the bench and he found the defendant guilty of PTR! How are you found guilty without evidence to prove your guilt? In addition another speedy trial motion was requested on that date. Jury trial is scheduled on 7/14.
In the court record it also says a speedy trial was requested on 5/22/08. The first speedy trial motion that I have a copy of and is filed stamped was in 7/07. In Indiana how many times do you have to ask for a speedy trial??????????? A Motion to dismiss was also filed under Criminal Rule 4 on 5/22/08 an I don’t think the court ever ruled on it. I will have to keep looking! These records need to be combed and documented and then sent to someone higher up than the judge on the bench.

Anonymous said...

There's a whole lot of similar things that we can say about the judicial system. I'm often convinced that much of our laws and much of the sentencing that's imposed on so-called "criminals" is related to profit and job security more-so than delivering justice.

In contrast, I was recently reading that in the Netherlands, they are working a very different problem - how to transition former prison gaurds into needed professions. Their prison population is down to 1,400 throughout the country. On a per capita basis, that's less than 1/50th the size of our prison population.

Some people might say "Well, that's because they have poor values and they don't prosecute people for prositution and drugs." Others like myself might say that any forced virtue is no virtue at all and that society functions better via reward than via punishment. I'd dare anyone to compare the safety of cities in the Netherlands with safety in any large US city.

Then of course you could compare prison populations in the US with those under Maoist communism in a police state like China. Under their strict population control scheme, they have 1/6th as many prisoners per capita as found in the US. Their strict nation with no Bill of Rights and no promise of individual liberty has half the number of prisoners, but almost 4X the number of citizens. In Iran, the prison population, per capita, is less than 1/3rd of our prison population.

And what's the biggest difference between our prison systems? In the us, many prisons are now operated for profit. In the nations mentioned above, they are operated by government.

In the US we may have the best foundation for individual liberty and personal freedom on the planet, in theory. But in practice, anyone who is sitting inside the jurisdiction of US courts and law enforcement while reading this has a much higher likelihood of having their rights removed and being imprisoned than if they were sitting in Iran or China. The numbers don't lie.

Paul K. Ogden said...

I was told by a criminal defense attorney that there is a statute that requires that probation conditions be related to rehabilitation. He believes the aforementioned alcohol prohibition condition on someone without any history of abuse and unrelated to the crime for which he was convicted, would be a violation of this provision. He also says though that this statutory provision regarding probation conditions is regularly ignored by judges.