For most felony offenses in Arizona, a person sentenced to a term of probation can be ordered to serve up to a year in the county jail.
When prosecutors intend to seek jail time as a condition of probation, they usually say so up front. If it’s a guarantee, the plea will say “defendant shall serve…” before describing the amount of time, whether it’s a deferred term, and whether the defendant gets credit for time served. In other instances where jail is possible, the plea will say “the state anticipates requesting an initial jail term” or something along those lines.
Occasionally, the prosecutor changes his or her mind between plea and sentencing. They will also say so if that’s the case. Other times, the probation department’s presentence report requests a jail term. The victim may show up and demand a jail sentence too. A good defense lawyer will consider requesting a presentence hearing, also called a mitigation hearing, in those cases. A defendant in Arizona has a right to such a hearing.
Even when those things don’t happen, any decent judge contemplating imposing some sort of jail term in a probation case is going to say so. The judge may call the parties to the bench and explain. Some judges just say to the defense lawyer on the record that he or she is inclined to order jail as a condition of probation. It’s obvious what’s going on.
The system would collapse if every defendant being sentenced to probation demanded a full-blown mitigation hearing. A typical probation sentencing hearing takes no time at all; no witnesses or exhibits and very little argument. It would be a massive waste of time to put on a huge production when everyone knows what’s going to happen. The defense attorney would look like a moron staging a pointless dog and pony show in a case where there’s no valid reason to believe jail might be a possibility.
In an abundance of caution, most lawyers proceed after making a simple request: we ask the judge that the matter be set for a presentence hearing if he or she is in any way inclined to impose even a single day of jail.
It’s an interesting thing for a number of reasons, but most of all because it forces defense lawyers to trust judges. We are essentially proceeding without immediately doing everything we could for our clients in order to allow the system to run more efficiently, and the only safeguard is our faith in the judge to be honest about his or her intentions. The situation is full of problems.
The person we’re trusting probably wants more than anything for everything go off without a hitch. The judge’s primary concern is likely to make it through the morning’s seemingly never-ending docket, and we’re asking about something that may result in overcrowding another seemingly never-ending docket.
If the judge doesn’t speak up and slams the defendant with jail anyway, it’s still more or less over for the judge. At most, the case will eventually come back after extended special action or post-conviction release proceedings, and the judge can just do the mitigation hearing and give the defendant the same or more time later on down the road. In reality, the appellate courts probably won’t do a thing. By the time it’s sent back, if it’s sent back, the judge will have likely moved on to a different assignment anyway.
It’s a real dilemma. As a lawyer, you must choose between looking foolish, irritating your client and everyone else involved in the case, and making needless work for yourself on one hand, and the extremely remote possibility of not having done everything you possibly can as soon as you possibly could and it making a difference on the other. Option one is guaranteed damage to your reputation and overall effectiveness, while option two is theoretical damage to the person who matters most. What do you do?
It’s a question that shouldn’t exist. We should be able to trust judges. The ones who would fail to speak up are the same ones who endlessly roll their eyes and castigate defense lawyers who demand presentence hearings in stipulated probation cases. We shouldn’t have to appear before judges so unfit for the bench that they don’t even have the decency to declare their intentions when doing so is only necessary because counsel attempted to accommodate them.
It’s no solution, as the real answer is up to the defense lawyer in each unique case, but it’s certainly revealing that the dilemma exists in the first place.