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Violation of Probation

Natalia J. Garland

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The kidnapping and murder of 11-year-old Carlie Brucia shocked and concerned all Americans. Carlie was abducted on February 1, 2004, while walking home. A carwash security camera happened to catch the abduction on videotape. This led to the arrest of Joseph Smith, a probationer and drug addict with a record of 13 previous arrests in Florida since 1993. After Smith was caught, he informed police that they could find Carlie's body in the Central Church of Christ parking lot.

Among Smith's previous arrests were heroin possession, prescription fraud, carrying a concealed weapon (a knife), aggravated battery, and attempted kidnapping (for which he was acquitted). After a violation of probation, his third since he was last released from prison on January 1, 2003, Smith was returned to society by Judge Harry Rapkin. Smith's probation officer had recommended revocation of probation and long-term residential treatment, and prison if necessary. Smith could have been facing a five-year prison sentence. Judge Rapkin has defended his decision to release Smith. Judge Rapkin has been under criticism for this and has received death threats. (For a follow-up on Joseph Smith, see Behavior Patterns.)

Since many mental health workers have probationers on their caseloads, it seems timely to: (1) review the purpose of probation, (2) define violation of probation, (3) define the consequences of violation of probation, and(4) develop ways to manage these cases. We need to make absolutely sure that our clinical approaches and recommendations on behalf of the probationer are not potentially harmful to society.

(1) Why are some criminal offenders placed on probation rather than sentenced to prison? Why are some prisoners released early on conditional terms of parole or probation? Probation can be granted when it is deemed sufficient punishment for the crime, and when the offender is not thought to be a threat to society. Probationers must report regularly to their probation officer, as well as comply with other various conditions. One of these conditions may be to complete an alcohol/drug counselling program. The purpose is the rehabilitation of the probationer. Probationers are expected to learn pro-social attitudes and behavior. They must learn to accept responsibility for self, behavior, and the consequences of their behavior.

(2) What is a violation of probation? If a probationer fails to maintain any of the conditional terms of probation, this failure is called a violation. These conditions could include any of the following.

  • Remain alcohol and drug free.
  • Cooperate with mandated alcohol and drug testing.
  • Attend A.A./N.A.
  • Stay within the state.
  • Obey curfew.
  • Pay fines and/or restitution.
  • Attend a job training or educational program.
  • Obtain employment if not enrolled in school.
  • Perform a community service.
  • Not have contact with certain individuals.
  • Abide by all laws.
  • Complete a counselling program.
  • Be placed on house arrest.
  • Report regularly to a probation officer.

(3) What happens when probation is violated? The consequences can vary depending on the nature of the violation, the severity of the original crime for which the offender received probation, and whether the offender has had prior convictions. Here are some possibilities.

  • Prison or jail sentence.
  • Serve the remainder of a prison sentence, in cases where an offender was released early.
  • Serve additional time along with the remainder of a prison sentence, in cases where an offender was released early.
  • Continue probation with added conditions. These added conditions could be any of the ones listed in (2) above.

(4) How are mental health workers to manage treatment for probationers who are referred to treatment? Probationers can be referred for various types of counselling, such as alcohol/drug rehabilitation, anger management, and parenting skills. The mandate for the type of counselling may be ordered by the judge, or it may be left to the evaluation and recommendation of the therapist. There must be a clear understanding among the judge, probation officer, therapist and probationer regarding the treatment requirements. Requirements include length of treatment, number of sessions per week, and goals and objectives. The probation officer is responsible for explaining the consequences of probation violation and treatment non-compliance to the probationer.

The therapist must communicate with the probation officer regarding the probationer's compliance and progress. This usually involves monthly written progress reports, and phone calls as needed. There is some room for clinical judgment. Severe problems, such as relapse on alcohol or drugs, should be reported immediately. The probation officer may decide to recommend to the court that probation be revoked, or decide that the therapist should re-evaluate the probationer and then modify the treatment plan or refer to a higher level of care as appropriate. Depending on the quality of professionalism between the probation officer and the therapist, there may be discussion and a mutual decision on what to do.

Absenteeism from the treatment program is often the first sign of failure. A missed session, for example, could mean that the probationer caught the flu and forgot to call to cancel his session. Or, it could mean that he was out all night with old friends, thereby violating a condition of probation as well as jeopardizing rehabilitation. Therapists have to individualize their cases, while adhering to contractual rules and avoiding unnecessary risks to the patient and society. When in doubt, report. Any missed appointments and tardiness must be listed in the monthly progress report. Even with an incident of one missed appointment, the therapist should telephone the probationer as soon as possible and attempt to find out what happened. If the probationer cannot be located, then there is reason for increased concern and action.*

Treatment plans for probationers should include the conditional terms of probation. Other goals and objectives will revolve around the purpose for referral, such as learning anger management skills, and so on. A good relationship between therapist and probationer can be difficult to achieve due to the professional obligation to report. Here some areas that could be problematic for therapists.

  • Feeling to blame if a probationer is sentenced to prison.
  • Wanting to give chances.
  • Not providing accurate reports to the probation officer (i.e., keeping secrets).
  • Reacting angrily or punitively toward a probationer's poor attitude or prison mentality.
  • Having a double standard toward probationers: expectations that are too high or too low compared to non-mandated patients.
  • Believing everything a probationer says without getting verification from the probation officer.
  • Assuming anything a probationer says is a lie just because he is a probationer.
  • Blurring the boundaries between clinical and legal decisions.

Each agency needs to work out their specific programs in conjunction with the local probation department and court system. Probationers, like all patients, deserve the best care we can give them. If we can help probationers to become productive citizens, then all of society benefits. Let us do our part to protect children like Carlie Brucia.

[*NOTE: The content of this essay is brief and generalized. It is meant to give readers a basic introduction to the concept of probation. It is not meant to serve as legal advice or as instruction for any treatment program. Mental health practitioners must follow any terms and laws applicable to their work. Probation cases must be managed according to severity of offenses and diagnoses.] (Written 02/16/04: bibliography available.)

Until we meet again..............stay sane.

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Copyright 2004 Natalia J. Garland