I talked a while ago about Unintended Consequences. About how when the Prosecutor pushes hard for a heavy sentence, the Defendant ends up finding any way to fight the case. When there’s a will, there’s away. With a little good luck and an attorney who can follow the rules correctly, a Defendant will often make a way out of no way. We’ve seen it in these Excessive Speeding cases, we’ve seen it in the Wheeler line of decisions on DUI. The only reason loopholes are found, is because someone is finally looking. So how does a Prosecutor solve the problem? Well here’s one way.
He asks for probation on everything. Everything? EVERYTHING!
At least every pre-trial case. Here’s why: it’s very hard to prove something beyond a reasonable doubt. At a jury trial, the Prosecutor has to not only do that, but they have to do it to twelve people. If one of twelve has a doubt based on reason or common sense, the Defendant is not convicted. And it costs the state and the taxpayer money. Lots of money.
Probation is a different beast. Hawaii Revised Statutes clearly state that the Rules of Evidence do NOT apply to a Probation revocation. The standard is much lower. And it is one judge who probably knows a little bit about you.
The easiest Prosecutor to get along with is the ones who say “Yeah, let’s give him probation, and see if he makes it.” It’s amazing how many Defendants, having heard probation is on the table, don’t even want to discuss the facts of the case. They’re ready to plead guilty and do their best on the streets.
Once on the streets, it’s up to the Defendant. The Judge has given him a speech. I’ve given him a speech. It’s all done. We’re all good. He just has to complete… whatever it is he’s supposed to complete!
What is the chance of beating probation?
But with 40 to 60% of addicts in treatment relapsing. What is the chance the Defendant is going to make it past Probation?
If the Defendant wins the case, whether by argument or by legal rule, the court has zero jurisdiction over him. He never has to check-in, he never has to pee in a cup. He’s probably on the same corner breaking the same law he broke last week. If the Prosecutor asks for probation, the Defendant will be watched by a Probation Officer, be required to attend drug treatment or mental health if necessary, and has to comply with the court conditions.
And the first time he slips up? No jury trial, no rules of evidence. The Prosecutor is free to throw the book at him and the Defendant has very little recourse.
And not only does the Prosecutor get a good reputation as “reasonable,” but then everyone can go home early!