Austin Criminal Defense Lawyer : Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

From the New York Times:

On Monday, Judge Ricardo M. Urbina of the United States District Court for the District of Columbia, sentenced a former senior pharmaceutical executive to write a book.

Earlier this year the executive had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

So as part of his federal misdemeanor probation, the defendant must write a book. About what, and for what purpose?

The judge sentenced Dr. Bodnar to two years of probation during which he is to write a book about his experience connected to the case…

In the sentencing hearing on Monday, Judge Urbina said he would like to see Dr. Bodnar write a book about the Plavix case as a cautionary tale to other executives.

I’m all for creative sentencing, at least as far as it leads to probation rather than prison, and especially for non violent offenses. Seems the judge’s argument is for deterrence: the defendant’s tale is a cautionary one for other executives tempted to be untruthful during federal investigations.

Infinity Ranch has a more humorous perspective:

As a writer, the idea that a judge would equate writing a book with punishment is kind of disappointing.

But on the other hand, there are probably dozens of things most people enjoy doing that I'd consider punishment.

Watching an entire season of American Idol on DVD, for instance. Might plead the Eighth Amendment on that one.

As a criminal defense lawyer, IR’s instincts are to assume that all sentencing considerations are punitive, or doled out for retribution. No argument with the gut reaction, go to court for awhile representing the accused and that’ll be your assumption after a while as well.

But allow me to suggest this particular condition of probation is best categorized under the most forgotten and least utilized reason for punishment, at least as federal sentencing is concerned: rehabilitation.

Is there a better way to learn from your mistakes than to think about them? And can you think about something, anything, more than when you write about the subject?

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In the comments section of an Austin American Statesman story titled “Drugs, mental health and the justice system” a reader who identifies himself as a former probation officer wrote:

As a former Probation Officer I read this story with real interest. In seven (7) years on the job, I can't recall a single instance where an offender wasn't offered an alcohol and drug treatment screening.

In fact, most offenders were ordered to complete inpatient or outpatient treatment while on probation.

It is entirely untrue that prisons are filled with folks who were never offered drug treatment. The majority of that population are multiple offenders whom have had more than one (1) opportunity to complete a substance abuse program.

In other words they were offered the treatment that everyone agrees they should get. Then they ment on to commit more crimes and they ended up in prison. The Criminal Justice system has a larger responsibility to the law abiding citizen, than they do to the criminal.

Thankfully, if you read all the comments you can see that the jury pools in Austin are full of reasonable minded citizens who think that probation is – at worst – what folks caught possessing drugs should get, but as for the comment above, I’d ask a really simple question:

Do you think that as a probation officer – that is, someone who met only with offenders who had already been placed on probation – you might have only been exposed to those defendants who indeed did have treatment offered to (or forced upon) them?

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The Adventures of Steanso brought my attention to a bill filed by Representative Jerry Madden of Plano that would inject a modicum of reason into our current controlled substance probation laws. 

The biggest obvious change would be to shorten the maximum length of probation for 3rd degree felony drug offenses from ten years to five. [See also Scott Henson’s continuing and excellent coverage on the subject of why shortening probation terms in Texas would be a good thing: start here and here.]

But there are other important changes tucked in there too, that need to be implemented. For example, it would require Texas judges to give credit to revoked probationers for the time they spent successfully completing SAFPF (the underlined portions are the proposed changes; they have not taken effect):

SECTION 1.  Section 2(a), Article 42.03, Code of Criminal Procedure, is amended to read as follows:

(a)  In all criminal cases the judge of the court in which the defendant is [was] convicted shall give the defendant credit on the defendant's [his] sentence for the time that the defendant has spent…

(2) in a substance abuse treatment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, as a condition of deferred adjudication community supervision granted in the case if the defendant successfully completes the treatment program at that facility.

Government Code 493.009 refers to SAFPF (pronounced by judges, prosecutors, defense lawyers and defendants alike as “SAFE-P”), which is a six to nine month therapeutic community program served in TDCJ (prison) followed by three months at a residential facility, and more outpatient treatment after that. 

Basically, it can mean being locked up for a year.

Now here’s where it gets interesting. Defendants in Texas who are offered probation on a 3rd degree Possession of Controlled Substance charge might now be offered up to 10 years of probation with SAFPF as a condition of probation. Or they might get an alternate recommendation of 3 or 4 years in prison, if they chose to turn down probation.  Anywhere between 2 to 10 "to do"(as we say).

Since under current Texas law, the defendant will not get credit for the year he spent completing the SAFPF program, if he is later revoked on probation, he may decide “just to take the prison time” instead. For someone who was offered the minimum of two years TDC, factoring in the possibility of parole, it might actually mean the defendant spends less time locked up by turning down probation.

That’s right: there are currently many scenarios where defendants turn down probation if SAFPF is a condition, because they calculate that they may parole more quickly if they take a “low” prison sentence instead.

I’m sure most practicing criminal defense attorneys in Austin have had these discussions with their clients.

From a public policy standpoint, it’s idiotic. We ought to be encouraging drug offenders to seek treatment; not giving them common sense reasons why they ought to use tax payer money to be incarcerated.  And not crediting them with the time they've done towards potential future revocations is both unfair to them, and overly burdensome on the taxpayer.

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California post conviction blog Criminal Appeal reports on an unreasonable condition of probation being stricken from a drug offender’s conditions of probation.

A California Court of Appeal has stricken the pet-portion of a probation condition requiring a defendant convicted of possession of methamphetamine to “[k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty four hours prior to any changes.”  (Emphasis Added)

The majority opinion decided that the condition was overbroad and did not relate to the offender’s reason for being on probation in the first place. As in Texas, California courts can add any reasonable condition of probation.

The lone dissenter argued that the rule wouldn’t allow the probation officer to veto the defendant’s decision to get a pet; but I would argue that it does(above and beyond just being a stupid rule). 

My wife got our dog in a park, abandoned as a puppy. If she had been on a Travis County Probation, and subject to this condition, she wouldn’t have been able to give 24 hours notice. Taking the pup home from the park would theoretically subject someone to jail or prison, as a violation of their probation. Folks…can’t we have some common sense, especially when we are talking about drug offenses?

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