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Tribal Probation

If you are serving a term of probation for a conviction in the Gila River Indian Community Court, you can spend the entire term of probation in jail if you violate a single condition of your probation. That means that if you’re doing a year of probation and fail to check in or get caught drinking, you could do a year of jail. No matter how long your term of probation is, you can get the same amount of jail. By stacking counts, the courts can put defendents on probation for years. That probably means years of jail sooner or later.

When I first handled a Gila River Indian Community probation case, almost every defendant automatically got the max unless the prosecutor was willing to cut them a deal. Prosecutors loved it. They had a lot of power. Defendants and defense attorneys hated it. Luckily, things have changed. The judges still almost always sentence defendants to the maximum jail term, but at least you have a chance of convincing them to knock off a little time. My argument has always been that defendants should be given an appropriate jail sentence for the original charges, not an automatic sentence based on their performance while on probation. If it’s any other way, the court will essentially be punishing them for seeking treatment.

Because of the way the system works, I usually discourage my clients from taking probation offers. Let’s say the client has a serious drinking problem. He needs help. He desperately wants help. He’s given a choice of thirty days in jail or a year of probation. Probation would get him the services he needs, but he’s likely to relapse. When he does, the probation department will be unsympathetic. They hate it when you miss appointments. Drinking and drugs are icky. Just cut it out, okay? He’ll probably end up stuck in jail for a long time. The real choice he has to make is whether he’d like to do thirty days of jail right away or do a year of jail when he gets busted for something sometime in the future.

Although prosecutors seemed to ignore my argument that they should treat probation as a suspension of the sentence for the actual crime, amazingly, I think they’ve finally started listening to my suggestions. Now, the pleas they offer have a clause saying the defendant “shall be sentenced to” a term of jail which is suspended for an equal term of probation. Basically, the new pleas do exactly what the courts used to do automatically. If you’re caught smoking marijuana, the offer might be one year of jail suspended for one year of probation. When I first saw it, I couldn’t stop shaking my head. Seriously? I haven’t dealt with a probation violation for one of these pleas, but I imagine the prosecutors have successfully returned things to the good ol’ days. I’m sure they’re very pleased with themselves.

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