The Campaign For DA

3.11.2007

Random Justice Thoughts

Let me summarize what happens to this guy: He was involved in an "armed robbery" when he was 17 where the victim was robbed of $2 and no one was hurt. He was given deferred adjudication probation for the offense. One danger of deferred adjudication is that a violation of probation can lead to a sentence from a judge (a jury is not an option) of anywhere within the range of punishment. The range of punishment for this guy's offense is that of a first degree felony meaning no less than 5 years and up to life in prison. In his case, he tested positive for smoking marijuana while on probation and the judge, for whatever reason, sentences him to the maximum: life in prison. This weekend, after spending 17 years in prison, he gets a very unusual pardon simply because his sentence was unfair.

Hey, man, get in line.

Our system is really weird when it comes to probation violations and revocations. For instance, every probation order I've ever seen (and I bet I've seen over a thousand), requires a defendant to "abstain from the use of illegal narcotics or drugs." But:

- There is no law that requires a probation officer to test a probationer for marijuana. Some guys get tested, others don't.
- If a person tests positive for marijuana, there is no law that says a probation officer must tell the prosecutor about the violation (if the prosecutor never knows, the probation can never be revoked.)
- If the probation officer tells the prosecutor about the positive test for marijuana, there is no law that says the prosecutor must try to revoke the probation. The prosecutor can simply determine, based upon his or her own standard of justice, whether the violation is "serious enough."
- If the prosecutor files a Motion to Revoke the probation for a marijuana violation, there is no law that says a judge must revoke a probation. A hearing could be held where the prosecutor "proves up" the violation, the judge can find that the defendant violated his probation, but the judge at that point can do everything from nothing to the maximum sentence.

Like I said, a weird system.