Problematic probation terms

Woman in Black echoes an annoying problem:

Probation terms: has anyone had experience with people who plead some version of no contest to a sex offense, get probation, and then get booted from probation because “participating and completing” sex offender counseling is a term of probation and they won’t admit that they actually committed the offense? What do you do? It seems like there are a host of problems…is it truly a willful violation? Why does the judge accept the plea and then impose such a term? Is it an impossible term? Does it defeat the purpose of allowing such pleas? What about Alford???

In my experience, probation is rather steadfast about this requirement and even Alford pleas don’t help. What is your experience with this? How do you deal with it?

[For those who don’t know, an Alford plea is one where the defendant agrees to plead guilty but still maintains his innocence. Typically there is a canvass that involves the acknowledgment that the State has enough evidence to prove his guilt.]

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10 thoughts on “Problematic probation terms

  1. Miranda

    WIB – I don’t know what state or jurisdiction you practice in, but I think there’s a great argument to be made there. To me, to require an admission during treatment to successfully complete probation is totally inconsistent with the idea behind an Alford plea. And on a sex offense, you’re really not going to get straight time (that’s reasonable) with no probation. So, while judges continue to accept Alford pleas in an effort to resolve the case in any way possible, it will not necessarily spare you from having to admit to the charged conduct, which, in my opinion, violates the plea agreement.

    Unfortunately, the Connecticut legislature has answered your question for those of us practicing in CT (Conn. Gen. Stat. 53a-32a)and our Supreme Court has upheld the statute is as constitutional. As if that wasn’t bad enough, the Court doesn’t even require the trial court to inform the defendant of the rule at the time of his plea! The only “notice” requirement is that the defendant be informed by probation and/or the treatment center that failure to admit means unsuccessful completion, and unsuccessful completion means a violation of probation. This is after the plea has already been entered and cannot be taken back.

    I should mention that there is the dubious opportunity to take a polygraph test in CT to avoid a VOP. If a sex offender passes the polygraph, s/he need not admit to the charged conduct to successfully complete probation. The problems and risks involved with this are pretty obvious.

    FYI, the text of 53a-32a is:

    If a defendant who entered a plea of nolo contendere or a guilty plea under the Alford doctrine to a violation of [enumerates applicable sex offenses] and was ordered to undergo sexual offender treatment as a condition of probation, becomes ineligible for such treatment because of such defendant’s refusal to acknowledge that such defendant committed the act or acts charged, such defendant shall be deemed to be in violation of the conditions of such defendant’s probation and be returned to court for proceedings in accordance with section 53a-32.

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  2. Gideon Post author

    One of the Supreme Court decisions Miranda is referring to is State v. Faraday [pdf]

    With those principles in mind, we conclude that the trial court was not required to notify the defendant, upon entering his plea, that a failure to acknowledge guilt could result in a violation of the condition of his probation requiring sex offender treatment. First, the conduct proscribed by a particular condition of probation is not a ‘‘direct consequence’’ of the plea. State v. Andrews, supra, 253 Conn. 504. In the present case, the defendant does not dispute that the trial court stated to him, upon entering his plea, that he was to undergo sex offender treatment as a condition of his probation.

    At that point, it was not incumbent upon the trial court also to list all the potential conduct that could result in a discharge from that program. Furthermore, because the office of adult probation is free to modify the terms of the defendant’s probation at any time; State v. Smith, supra, 255 Conn. 841; it is unrealistic to expect the court to canvass a defendant regarding the conduct necessary to comply with those terms. Finally, § 53a-32a was in effect at the time the defendant entered his plea, which explicitly provided that a discharge from sex offender treatment for a failure to acknowledge guilt will automatically trigger a probation revocation proceeding.

    This belies the defendant’s contention that he was without knowledge, when he entered his plea, that his failure to acknowledge the commission of the charged crimes would result in a violation of probation. Nevertheless, the defendant argues that the trial court could not revoke his probation based on his failure to admit guilt because such a requirement was inconsistent with his guilty plea under the Alford doctrine. We are not persuaded.

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  3. Gideon Post author

    WIB, the opinion linked to above has cites to jurisdictions where

    a defendant, who enters a guilty plea under the Alford doctrine, cannot be deemed to have violated his probation for a failure to admit guilt unless he specifically was informed during the plea canvass that such conduct was proscribed. See, e.g., People v. Walters, 164 Misc. 2d 986, 988–89, 627 N.Y.S.2d 289 (1995); State v. Birchler, Ohio Court of Appeals, Docket No. 00AP-311 (October 5, 2000), 2000 Ohio App. Lexis 4622, *3.

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  4. Greg Jones

    In Michigan, most sex offenses carry prison terms. Successful completion of sex offender counseling is required to receive favorable consideration from the parole board. There is about a five year wait to get into that counseling, and failure to admit equates to failure to successfully complete the program. That’s why the Michigan parole rate for sex offenders is about 10 percent, and why most sex offenders serve the maximum sentence. It’s the same problem you describe, but in a worse setting.

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  5. Woman in Black

    You know, this is actually very helpful! Thanks. It is an undecided question here and the current case has great potential for appeal; guy DID offer to take a polygraph, more than once; specious “victim;” they would not even admit him to counseling because he would not “admit” his conduct. (a) What kind of professional ethics is that? Counselor never had anyone in denial before? (if he was, in fact guilty); (b) I think it is an impossibility to complete something that won’t admit you, and it is not willful conduct.

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  8. kathy reilly

    if you take a deal to get out of jail such as the alford doctrine and you go to class and see your probation officier but you have a letter from your docotor stating that you can not go to class anymore can probation violet you and put you back in jail for this.if they have no evidence on you at all

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  10. Debra VanEpp

    I am not sure if this is the proper place for me.So maybe someone can guide me in the right direction.
    When my son was 16 he had a girlfriend and she was 15 the courts tried to charge him with rape but was not enough evidence to do so.In stead he was charge with illegal sexual contact with a minor.He is now 23.In between the waiting time for him to be sentenced he had caught a few more charges nothing to serious,Make a long story short the courts put everything together and gave him 10 years suspended to 8 years and 10 years probation and register as a sex offender.He served 3and a half years and paroled out for a year.He did great through his parole.As soon as he got put on probation everything the probation officer could find wrong they did.He had to attend these sexual thearpy classes that were very in debt and consist of pedifiles and they had to share their feelings about what made them be turned and do these things to little children,First of all because of the nature of his case and him being only 16 when this happen and it was consentual sex she was just 15 and her family pushed the issue.I don’t feel as if my son belonged in those classes he said they would say some sick stuff and it was disturbing him upon telling his probation officer how he felt. It didn’t matter so he stopped going and hgot a violation and now the courts want give him 2 years and 8 years probation It is like they wanna hold on to him. Now through all these years he has had the worst time getting a job society looks at him as a really bad person someone in our neighborhood went as far as sending out flyers to the whole neighborhood letting them know where he lived and it made our life hard.So this as much information that I can give at this time.If anyone knows of anything that I can do or of anyone who can give me advice I would appericate it. Like I said this is on going since he was 16 the kid never had a break in his life and please if any one can help me please do E-mail me at Mommydew08@yahoo.com Thanks A mommy who loves her son.

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