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Colorado Criminal Probation Law – What Exactly IS Probation?
By H. Michael Steinberg Colorado Probation Violation Defense Lawyer
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Colorado Criminal Probation Law – What Exactly IS Probation?
Colorado Criminal Probation Law – What Exactly IS Probation? – A sentence to probation, while the most common kind of sentence a convicted person receives in the Colorado criminal justice system, is not very well understood.
This article takes a closer look at what probation is, why is essential to the criminal justice system and most importantly, how you can make it work by understanding it before you are “placed” on it.
The American Correctional Association defines probation as:
….a court-ordered disposition alternative through which an adjudicated offender is placed under the control, supervision and care of a probation staff member in lieu of imprisonment, so long as the probationer meets certain standards of contact.
The advantages of probation to the government over imprisonment are obvious – probation provides lower cost, increased opportunities for rehabilitation, and a reduced risk of “criminal socialization.” To the person whose liberty is at stale, the advantages of accepting probation are equally obvious. Few of us placed on probation, however, actually take the time to try to understand exactly what it is.
Probation Officers Are Powerful – More Powerful Than You Might Imagine
Probation officers are insightfully called “the eyes and ears of the Judge.” You can believe it. No other criminal justice division is wholly involved with the Defendant in as comprehensive a manner as is the probation department.
Every other actor in the play that is the criminal justice system is one act:
1. The Police investigate crime, make arrests or issue s summons and then turn the case over the prosecution.
2. The Prosecutors either file charges and then prosecute the case or they reject the case for prosecution.
3. If there is a conviction, the Prosecutor hands the case over to the Judge for sentencing.
4. THEN the probation department (if probation is granted) interacts with ALL of these players and supervises the Defendant through to the end of the sentence – which is by far the most interaction that occurs with the Defendant.
Unbelievably High Probation Caseloads Means More Difficult Probation Officer Relationships
Probation officers are overworked. To get along with your PO – you need to understand that.
In large urban areas such as Denver, the caseloads placed on the shoulders of probation officers leave little time for the kind of patient, caring approach they wish they could provide.
Monthly meetings are the norm and because there is little time for monitoring – much of the burden is placed on the probationer to be proactive on issues such as a obtaining employment, treatment progress, and the monitoring of the performance of public service hours.
An ideal caseload of 30 has now exploded to caseloads exceeding 100 or more. Furthermore, probation departments are often overloaded with administrators and are short of the staff officers and clerical support necessary for efficient performance goals.
Caseloads are often split between juvenile, misdemeanant, and felony offenders and split again along risk factors as between the probation officers.
Colorado Probation Officers Have Tremendous Power Often With Very Little Oversight
Probation officers operate with great discretion and very little oversight. The impact of the probation officer, often in the absence of substantial education, training or experience, can be life changing to the person on probation. Probation officers have a very direct impact on the liberty of the offender. They decide whether the offender is complying with probation, is in violation of probation, and directly affect the sentence if probation is revoked – which includes how long of a jail sentence the offender may serve.
Probation officers, through pretrial services, are directly involved in decision making long before the offender is placed on probation after sentencing. At the very initiation of a case, probation evaluates the accused and makes bail bond recommendations to the Judge. They are given the blanket authority by the Court to impose conditions they believe are necessary in the individual case.
Probation is also responsible for the preparation of the Pre-Sentence Investigative Report – Used In Sentencing The Offender
The Colorado Pre-sentence Investigation Report (PSIR)
Probation divisions in Colorado have a specific subdivision of probation officers that draft and present pre-sentence reports to the Court for the purposes of sentencing.
These specialized probation officers collect information from the point of arrest, through the criminal history of the Defendant to statements from the victim and the amount of restitution that may be ordered. The report also analyzes the seriousness of the crime, the defendant’s risk to the community, a summary of the possible sentence options open to the Judge, and a recommendation as the appropriate sentence.
Colorado Probation Officers Have The Authority To Add Conditions Of Probation Unilaterally
While the setting of the specific conditions of probation (which includes suspending jail or prison as a condition of probation) is performed at the sentencing hearing by the Colorado Trial Court Judge, the probation officer has the authority under the general authority conveyed to them by the Court, to add additional specific conditions in addition to the conditions set by that Trial Court Judge.
The Colorado Trial Court Judge (the Judge) determines what conditions must be set before a probationer is allowed to remain free in the community. The Judge has the power to construct almost any term of probation that is reasonable given what that Judge learns from the Colorado criminal defense lawyer, the Prosecutor and the Pre-Sentence Report, if one has been prepared for the case.
Basically – Three Types Of Conditions Of Colorado Probation
There are three basic types of conditions of Colorado probation:
1. The Standard Conditions – These typically include:
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Reporting to the probation office,
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Notifying the PO of any change of address,
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Remaining gainfully employed or in school or both,
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Not leaving the jurisdiction without permission.
2. The Punitive Conditions: Intended to punish the offender and is normally coupled to the seriousness of the offense:
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Jail,
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Fines,
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Useful Public Service Hours – (community service),
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House arrest- In Home Detention.
3. The Treatment Conditions: Intended to treat whatever issues are present – to rehabilitate and help the offender not repeat future crimes:
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Substance abuse treatment and monitoring,
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Therapy and other types of classes and counseling,
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Vocational training.
Contained within EVERY grant of probation in Colorado – in the probation sentence itself, is a short but powerful phrase which reads something like. “in addition to these conditions “such other conditions as the probation officer may deem proper to impose under the circumstances of the case.”
Using this delegation of power, a PO may ADD new – additional conditions to the probationer’s sentence not directly ordered by the Judge.
The Importance Of A Suspended Sentence To Jail Or Prison As A Condition Of A Colorado Probationary Sentence
As a powerful incentive, a Judge at sentencing may either “split” the sentence by combining jail with the other conditions of probation or – completely suspending all jail “in favor of straight probation.” Under the former sentence, the Defendant does BOTH an immediate jail sentence AND has to complete the other conditions of jail OR the Judge holds the jail in abeyance to be reinstated of the probationer fails at any one or more conditions of probation.
The Validity Of A Condition Of Colorado Probation – Four Elements
Probation is NOT a form of ”prison without walls,” it is intended to be a period of conditional liberty that is protected by due process. Therefore a condition of probation may not cross certain delineated boundaries recognized by the law.
There are four general elements that control whether the condition of probation is reasonable under the law. A condition of probation must:
1. serve a legitimate purpose–must either protect society or lead to the rehabilitation of the offender;
2. be clear-with language that is explicit, outlining specifically what can or cannot be done so that the average person can know exactly what is expected;
3. be reasonable–not excessive in its expectations, and
4. be Constitutional – while probationers do have a diminished expectation of certain privileges, they retain basic human freedoms such as religion, speech, and marriage.
If You Accept Probation In Colorado – You Are A Party To A Contract And Contract Law Applies
The probationer should view probation as a contract and the conditions of probation as the terms of that contract.
The Colorado Probation “contract” provides for conditions that must be followed to permit the Colorado probationer to remain at large in the community during the period of the contract. The terms of probation are put into writing and reviewed with the probationer at the time that person meets with his probation officer or other court official.
The probationer SIGNS the contract and at that moment the probation officer and the Judge become the “enforcers” of the contract, and are responsible for making certain the terms of the contract are fulfilled.
If there is a violation of the probation contract during the period of the contract, after a hearing on whether that violation has been proven, (or the Defendant admits the violation), the Judge may:
1. Continue the probationer on probation with or without extending the term or modifying or enlarging the conditions; or
2. Revoke the sentence of probation and impose any other sentence that was originally available at the time of initial sentencing ( e.g., prison or jail).
One Last Note: Colorado Probation And The Cost – Benefit Of Drug Treatment – Why Drug Treatment Makes Sense
Research across the country demonstrates over and over again that the level of criminal activity declines by two-thirds from that period before the completion of drug treatment to the period after treatment is completed.
Simply put, the longer the period of time in treatment for all offenders, the greater the reduction in the amount of overall crime for the community. There is a direct inverse ratio that has been well established.
One researcher put it this way:
“It seems that drug abuse treatment mandated by the criminal justice system represents one of the best and most cost-effective approaches to breaking the pernicious cycle of drug use, criminality, incarceration and recidivism”
Colorado Criminal Probation Law – What Exactly IS Probation And Why It Works
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Never stop fighting – never stop believing in yourself and your right to due process of law.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”
You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Probation Law – What Exactly IS Probation?
