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(520) 624-7800

What Is Probation?

(The content below was transcribed from an interview done with Acacia Law. We think you’ll find it much easier and more enjoyable to read this way.)

Interviewer All right. So, first we’ll talk about probation. I thought probation would occur after someone’s convicted, but can it occur before someone’s convicted and what is it?

Acacia Law: The first part is not really probation, when you’re dealing with a case that is still active and where the person has not yet been sentenced. What that entails is what are called ‘release conditions’ and what I mean by that is that when a person is charged with a crime, they can be released under certain conditions.

For example, they can be released on their own recognizance, they can be released to a third party which is oftentimes family members. They can be released with electronic monitoring through an ankle bracelet. They can be released through posting a bond whether it be a cash bond or a bond where you’re only required to put 10 percent down, that’s non-refundable, and secure the balance of the bond with assets. That is essentially what you might consider to be probation to the extent that it is part of the court system.

It is basically a means of having the person comply with conditions even though they have not been sentenced or have not pled guilty to a particular offense. And what it does, is allows them to monitor the individual and make sure they are in compliance.

The entity that takes care of all those analysis and supervision in this state is what they call pre-trial Management Services. Which is a branch of the judiciary and basically what they do, is act as an independent, objective supervisor for the court with respect to the defendant.

They do not have terms that are set by either the prosecutor’s office or from the defense. They prepare a report every month that is submitted to the presiding judge over the case to see how the person has been doing on their release conditions and that is basically, technically not probation, but release conditions, albeit since you are complying with specific terms that impinge on your freedom and liberty, they are, in effect, probation-like in nature.

Interviewer So once you are accused of a crime, depending on the crime, they’ll throw you in jail for a period of time and then, when you say ‘release conditions’ that means getting out of jail, right?

Acacia Law: Yes. What happens is that a lot of times I have clients who think, because they were what’s called ‘cited and released’, and what that means is that an officer had them sign a piece of paper promising to appear in court on a certain time and they don’t take them to jail.

A good example of that is a speeding ticket. Rarely does someone go to jail for that and get a hearing in front of a judge to set release conditions. All they do is sign a citation. It’s called a ‘cite and release’. The person signs, acknowledging the charge and that they need to be at a certain court at a certain date and time. And then they are done.

What I’ve found though, is that many people think that because they weren’t taken to jail that the state has no case and the police officer did a poor investigation, a number of things are actually not accurate, okay?

Basically, it’s up to the state. They can even serve you by certified mail if they feel like it. They don’t have to arrest you and take you into custody. So, to answer your question, what are the things that they should expect, really depends on the seriousness of the crime, whether it’s a felony or a misdemeanor.

In particular, mood of the judge, the particular facts that are specific to the case and any background information that they have on the individual that might establish whether they might be a flight risk or not. Part of what they do in making these determinations, is go by what the charge is and the reason they do that is because some of the charges, statutory charges in this state are in fact non-bondable. Meaning that no release conditions will have the person be allowed to be removed or taken out of custody by alternative release conditions.

Just to be clear, release conditions technically are only supposed to be implemented to the extent that they are required to ensure that there is a high likelihood that the person who is charged will appear and will not flee the jurisdiction. So that’s how it works in practice.

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Interviewer If someone’s cited and released, could they be in danger the next time they have to appear in court that they might be taken into custody and aka arrested in court and they are not going home?

Acacia Law: Yes. Oftentimes what happens in that situation is one of several things. One, during the course and time that they were cited and released, the police or prosecutor’s office may have found that the person has active warrants. So instead of going to get them, they know that they will be in court on their cite and release in a couple days, they just wait and arrest them there.

And then if they don’t show up to court which is called an FTA or failure to appear, then they will usually just try to locate them and arrest them. So they can be taken into custody, even though their promise of cite and release. If there are either warrants, or if there are possible other crimes that might make the person be deemed a threat to the community.

Interviewer So release conditions are for people that could be a flight risk, meaning they won’t come back to court, but if the court thinks that that person’s a danger to society at large in some way, they won’t want to release them either.

Acacia Law: Right. And effectively what happens is that when it comes to assessing what is an appropriate release condition term to be set by the court, they look, in fact, at aspects of the case such as whether the person is, in fact, a potential danger to the community. Whether the person has ties to the community, is another factor that they consider.

Some more factors include things such as do they have any dangerous prior felonies? Have they failed to appear even from a small traffic ticket, from another court? All these things are weighed in. And then there are some charges wherein the person is simply not bondable. A lot of the serious sex crimes, in this state, the person is not bondable, they must stay in custody. In other instances, you’ll find that a person is basically given a bond that is so high that even though technically they’re bondable, in reality they are not.

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