In my last column, I wrote about the trend towards misdemeanor bail reform in the American Criminal Justice System. Relatedly, there has been a lot of focus on misdemeanor probation. This is not so much a reform issue as a newly heightened awareness of constitutional principles that have been in place for decades.
It seems to go without saying that when someone is on probation, and they are being placed on probation or being accused of violating their probation, that they are entitled to an attorney in the same way that they are entitled to an attorney when they are facing a criminal charge. After all, their personal liberty is at stake – they may be incarcerated as a result of this hearing. In 2002, the United States Supreme Court stated this plainly in a case called Alabama v. Shelton. In the Shelton case, the Supreme Court said that not only are the defendants entitled to have an attorney, but they are entitled to be notified that they are entitled to an attorney and have the process explained to them. Gagnon vb. Scarpelli, in 1983 said something similar.
Violations of probation mean that the conditions of probation, whatever they are, haven’t been met. Conditions of probation can be a wide variety of things. You can be required to attend certain classes, pay fines, do community service, stay away from places or people, or abstain from activities that might otherwise be legal if you weren’t on probation, like drinking alcohol. You also have to report to your probation officer when your probation officer tells you to.
Of course, in order to get in trouble for violating a condition of probation you have to willfully violate that condition. A willful violation means that you could have complied, you just didn’t. There are many instances in which you couldn’t have complied. For example, if you were incarcerated for something else or deployed by the military, you couldn’t have reported to your probation officer. If you work for minimum wage and have to support yourself, there is no way you could pay a $5,000.00 fine or attend a class that costs $500.00. If you were hospitalized after a bad car accident or a heart attack, or undergoing chemotherapy, you might not be physically capable of doing community service.
Bearden v. Georgia, another United States Supreme Court case decided in 1973, states that if money is the thing standing between you and complying with your conditions of probation, the court needs to ask questions about your ability to pay. If you are truly unable to pay, you can’t be punished for not paying, and the court needs to come up with some kind of reasonable alternative like additional community service, reducing the fine, or waiving it altogether.
Georgia law specifically defines what significant financial hardship is. It occurs where there is a reasonably probability that the defendant will be unable to satisfy his or her financial obligations for two or more consecutive months. O.C.G.A. 42-8-102(e)(1)(c) then goes on to specifically say that this is presumed to be the case when the person has a developmental disability; is totally and permanently disabled; earns less than 100% of the Federal Poverty Guidelines; and/or has been released from jail or prison within the last 12 months and was confined for 30 days or more before being released.
The idea of probation is not to make peoples’ lives difficult, but rather to teach them the error of their ways. By setting them up for failure, or making the conditions impossible to meet, we send the message that the system is working against them and not for them. When we have functional people the whole of society works better, and the courts should be working to ensure that everyone plays by the rules.