» Arizona Cases, Courts, Probation » Just Another Double-Standard

Just Another Double-Standard

Clients who are interested in a plea usually want a probation plea. It should come as no surprise that most criminal defendants would love to avoid prison, and in Arizona, the potential range of prison for the charge underlying the conviction gets suspended while the defendant completes probation. Violate and you face the original prison sentencing range, but in the end, whether you ever end up facing any prison sentence at all is almost entirely in your hands.

Probation isn’t all fun and games though. An Arizona criminal defendant can get up to a year in the county jail as part of probation. That’s especially tough considering that many county jails are terrible. Clients often tell me they’d rather spend a long time in state prison than spend even one day in some of Sheriff Joe’s county facilities. I can’t imagine why, unless they happen to have some strange aversion to pink undergarments and two square meals of rancid bologna a day.

Unlike the length of probation, which is up to the court no matter what the parties say in the plea, the parties can stipulate to a specific term of jail. The state and a defendant may not bind the trial court to a fixed period of probation, but they can bind the trial court to a fixed period of jail. Kind of. That’s where the double standard comes in.

Let’s say the state offers a defendant a probation plea with six months of jail. If the court thinks that’s too much, it can reject the provision as inappropriate, but then the state can withdraw from the plea. In most cases, that means bad news for a defendant. He or she isn’t entering the plea because he wants to go to trial, and getting a new judge to accept the rejected plea in its entirety can be tough. The bargained-for jail term stands because the rules don’t give a court authority to reject a provision after it’s been accepted. If the jail term was the bargained-for and agreed-upon punishment for the crime, the judge simply doesn’t have the jurisdictional authority to change an otherwise lawful sentence. Again, kind of. This is where that double standard comes in.

What if the sentence is six months and the court wants to give more jail? At that point, it’s all about notice. The case law says that a defendant can’t be given more jail as a condition of probation than the amount of time he could otherwise receive as a sentence had he not been placed on probation, “unless [he or she] is advised of the possibility at the time he pleads guilty.” The necessary implication is that he can be given more as long as he has notice. Similarly, every defendant is advised that, when granting probation, a court “may require that [he or she] be imprisoned in the county jail at whatever time or intervals, consecutive or nonconsecutive, the court shall determine, within the period of probation, as long as the period actually spent in confinement does not exceed one year or the maximum period of imprisonment permitted under chapter 7 of this title, whichever is the shorter.”

Courts all seem to know that they can’t give less jail, but they frequently give more, and I’m not aware of a single case addressing whether a defendant can withdraw when the court gives more jail than the amount in the plea. Some judges tell me they think defendants can’t, while others say they can. It seems to me that this issue never gets litigated because of one big factor: leverage. If the judge gives a little more jail, the defendant is still probably going to be better off than he would be at trial. Most defendants aren’t going to risk ten years of prison because they got an extra month of jail. Defendants may not be able to withdraw, but regardless, even if they could, they wouldn’t because it’s still better than trial.

The end result is a double standard. With a probation plea, a defendant might get more jail than he expected, but he can’t get less. It’s unfair on its own, but it’s worse in light of the fact the courts shoot down things like the length of probation by saying that prosecutors controlling the conditions of probation “would be an infringement on the court’s jurisdiction over probationers.” Basically, the court gets to determine all the stuff that most prosecutors don’t care about, like the number of community service hours, but it doesn’t get to make the only thing that matters to most probationers better, just worse.

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