Quick Dips: Probation Violations and the Right to Representation
Florida Joins the Growing Ranks of States who Sentence Probationers to Jail without Providing an Attorney
Arguably, one of the most fundamental of the rights found in the United States Constitution is the right to an attorney in any criminal prosecution. This right can be found in the Sixth Amendment and states, in pertinent part, “In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense.” Now, it appears, that this right can be added to the list of rights being undermined by the current practices in the criminal justice system. Jury trials have long been on the decline in this country, with over 97% of criminal cases being resolved by plea bargaining. Prosecutors and legislators have reduced the number of jury trials and increased guilty pleas by threatening harsh and lengthy sentences. Estimates of wrongfully convicted persons range, from less than one percent to as high as 37%, but without DNA evidence that can actually prove someone is innocent, it may very well be that the true number is unknowable. In a country with more than two million people locked up, even where the number of wrongfully convicted only one percent, that would equate to tens of thousands of innocent people behind bars. As criminal defense attorneys, we may be biased, but we are convinced that a primary cause of wrongful convictions derives from the overwhelming pressure to plead guilty when the alternative could be a long time in prison.
The role of probation is often overlooked in sending people to prison. A person who receives a probation offer and pleads guilty can end up in prison as a result of violating their probation. Generally speaking, a person on probation for a serious offense is much more likely to be sentenced to prison for an ultimately trivial violation, such as smoking marijuana, or forgetting to change an address with their probation officer. There has been a growing bipartisan shift in the nation towards reform of strict sentencing laws. Florida has recently taken a strong first step towards reform with the passage of House Bill 2019-167, a broad piece of legislation that seeks to modernize and reform many aspects of the criminal law and modifies the probation system. This bill became law on October 1, 2019, and many criminal justice practitioners are still unpacking what it all means.
A section of the law that reflects a major change in how probation violations will be dealt with can be found in section 948.06, Florida Statutes. This section creates an “alternative sanctioning program.” Prior to the change in the law, a probation officer would file an affidavit with the court outlining how the probationer allegedly violated, the probationer would be brought before the court, given an attorney or the opportunity to hire an attorney, be given an opportunity to consult with their attorney, and ultimately be given a right to have a hearing where witnesses were required to prove that the probationer actually committed a violation where the probationer would be represented by an attorney. Under the new regime, however, this process can be eliminated. Now, a probation officer is able to offer a probationer jail time instead of the formal process. Basically, a low-risk violation can get you up to five days in jail and a moderate risk violation can get you up to 21 days. These programs have been adopted in a number of states in recent years and are known by many names, but the media has adopted the term “quick dips” The violator must admit the violation and waive all procedural rights, including the right to have an attorney.
We recognize that there are benefits to such a program, such as reduction in the number of persons having probation revoked or potentially being sent to prison, but the reality is that, for many, even a short jail sentence can result in loss of employment, lost wages, inability to make rent or pay bills, or other life-ruining consequences. As attorneys, our primary concern is, without the right to legal representation, such programs can be coercive and force admissions to violations where there may be legal or factual defenses that are not apparent without the advice of a lawyer. These programs can be fertile ground for abuse. For example, one North Carolina probation office held a competition to see who could send the most probationers to jail in one month using “quick dips.” The winning unit was to receive a pizza party. The state shut the competition down when it became public, but the damage was already done.
The reality is that these programs can help many, by avoiding a potentially more serious sanction at the hands of a judge, but they also have the capacity to do harm. Unfortunately, the requirement that a probationer waives legal representation means many will be sent to jail where it may have otherwise been avoided. If you are on probation and believe you are soon to be violated, it is imperative that you seek the advice of an attorney before meeting with your probation officer. Otherwise, you may find yourself in jail, with no lawyer, no hearing, and at the whim of your probation officer.