Retired Judge Paul Remembers

He would often add probation to the end of an incarceration sentence, until the state stopped the practice. He then took another route to the same end. “My hope was always that there were at least two charges,” he relates. “So one charge, if incarceration was necessary, it could be done on that charge; and the second charge would lead to a sentence of probation. The idea was to have a tail on the individual coming out of prison—not simply released to the street, but having a tail, someone for him to be responsible to, someone who could look over and hopefully assist the probationer in lots of different ways that were needed.”

The former judge continues, “That was also partly to address the phenomenon we were seeing at the parole board as of 1994, when new statutes made it very difficult to release people.”

Paul would take advantage of any mental health issue by remanding the defendant to the state hospital, to be evaluated for up to sixty days. “And they did do a better job of evaluating his or her mental health or medical situation, obviously a little more work on family, on housing, on education. And they would come back with a pretty decent report, written by a clinician generally. And they would sometimes make a recommendation for some kind of sentence that would involve a commitment to the hospital.

“Obviously, it had to be on the criminal side because they were now convicted. Or something like that, a long period of probation, with mental health counseling and treatment and the like.

“And that was almost always very useful. The state almost always opposed it because they weren't getting sentenced right away. It really was not well known to the defense bar and so underused, but there were occasions when I did it even if nobody wanted it.

“And then there was the odd occasion when the crimes I had in front of me were serious but generally nonviolent, and yet the statute required a substantial sentence, if you're going to impose a sentence. You could impose probation, but it also was probably more serious than probation. So I would at least in my own mind use the mental health evaluation as two months of incarceration because they were incarcerated in the state hospital. And then when they came back, I might give a sentence of probation, at that time acknowledging on the record that they had done sixty days in prison, along with whatever period of time they'd done awaiting trial in prison.

“So it was a fair way to address some unusual situations where they didn't deserve to be sentenced for as much time as the law required. But that was the only assistance we really had in probation.”\

His docket as judge included felonies rather misdemeanors. “For years I would meet with the lawyers in the lobby—just the lawyers, not the client or defendant. And then we would talk about the strengths of the state’s case and its offer to the defendant, and the defendant's defense lawyer would talk about his or her case and some of the weaknesses of the state’s case and consider perhaps a counteroffer. And we were always of the view that the judge could not get involved in bargaining. We could address pleas, but we couldn't bargain. So we would leave it to the parties to bargain. And much of the time, they would agree.”

Still, much of his time during the crime wave doing arraignments, setting bail, addressing discovery motions and motions to dismiss, and handling plea deals seemed like rearranging deck chairs on the Titanic. “The ship was still going down, no matter how well you measured the curtains.”

When Paul worked in the federal court, pleas were also the norm: “A defendant almost never went to trial because of the old saw that the FBI wouldn't investigate any case unless they were at least 90 percent sure they could get an indictment, while the US Attorney wouldn’t indict unless they were 90 percent sure that they could win a conviction—and they all generally had a 12-to-18 month head start.

“For years I would meet with the lawyers in the lobby—just the lawyers, not the client or defendant. And then we would talk about the strengths of the state’s case and its offer to the defendant, and the defendant's defense lawyer would talk about his or her case and some of the weaknesses of the state’s case and consider perhaps a counteroffer. And we were always of the view that the judge could not get involved in bargaining. We could address pleas, but we couldn't bargain. So we would leave it to the parties to bargain. And much of the time, they would agree.”

As in the 1980s, the federal get-tough policy of 1994 gave impetus to similar changes in the states, including where Paul practiced.

“For many years until 1994, we had a structure that was anything but truth in sentencing,” he remembers. “If you were convicted in the superior court of a violent crime, you were given what they called an indeterminate sentence. It was a from/to sentence—say, from six to ten years—and you were eligible for parole on a violent crime after two-thirds of the minimum, after four years. You also had good-time credits that escalated depending on the number of years you were sentenced. And if you were sentenced to more than ten years in prison, you had fifteen days a month automatically credited against the maximum sentence.

“So if you were given a 10-to-12-year term in prison, you were eligible for parole after six-and-two-thirds; that is, after serving two-thirds of the minimum of a violent crime sentence. You wrapped—because of statutory good time, usually after five and a half. So you wrapped directly, no parole. One correctional institution was so crowded that inmates wound up serving one-tenth of their sentence…. And so the newspaper would see that someone who had gotten an 18-year sentence for a quite serious crime was on the street in a year and a half.

“That was driving a lot of people crazy.” Understandably, with crime still near its all-time high.

“And in return for fixing this,” Paul continues, “the defense bar and a number of other folks, and certainly the courts as well, asked that we develop some uniformity of sentencing. Essentially a set of sentencing guidelines, based on, initially, ten thousand sentences that had been imposed in the superior court over the years—I can't remember how far back we went—but we gathered all the statistics and we developed a kind of a range in the form of a grid system that would be presumptive for the judge but not required….They could look to the guidelines for the crime penalty but could also take into account the offender and the victim.” After all, a perceived need for sentencing consistency helped drive the federal mandatories of the 1980s.

In other words, judges could do what a probation department normally undertakes in its pre-sentence investigation.

“We generally found that a sentence of probation of more than five years was probably not useful because they wouldn't be likely to succeed. The same with too many conditions of probation; they wouldn't be likely to succeed.”

He and his judicial colleagues eventually developed a colloquy when passing sentence.

“‘Do you understand that with respect to one or more of these sentences, either the defense or the state or both have asked, and I may be inclined, to place you on probation for a period of time. Do you understand that if, during that period, you violate the terms and conditions of your probation, then you may be subject to a notice of surrender and you may in fact be found in violation of your probation? If you are found in violation, then at that time, either I or another judge would have the authority to impose the remainder of the maximum sentence authorized by law for the crime as to which you were put on.’ And these were often ten, twelve, fifteen-year crimes. A lot of probationers didn't understand that.”

Paul explains further. “I know I had cases in which I offered in open court the defendant a choice. ‘I could sentence you to a year in the house of correction now, or a year in prison now, or I could sentence you to a year on probation. It's straight probation for a year with the understanding that if you screw up, the next judge can sentence you to far longer than a year.’ Every single one of these guys chose probation. Nobody wanted to do time. And every single one that I was involved in was back within six months. They screwed up—and I pretty much knew they were going to screw up, but I wanted to give them the choice to see if they might be able to survive. And they just couldn't, for a whole variety of reasons, but they wanted the opportunity to be free and not think about a year from now when they would have been out and absolutely free of supervision or observation.”

His experience handling specific violations resembling Simon’s, Paul observed flexibility within the probation function as well. “There was some discretion for a long time within the department and among the probation officers to decide when a violation of probation was sufficiently severe to merit a notice. And they have their own system of giving warnings internally and giving warnings to probationers, and essentially telling them that you can't do this and if you do it again, I'm going to have to file a notice of surrender.

“My impression was that a good number of probationers were able to get along at that level. They managed to skirt the edge of the boundary, but they stayed. They stayed okay. And they didn't have perfect records as probationers, but they did the best they could. There were times when they were out of work and all that kind of stuff.

“But any kind of new offence—anywhere in the state—generally required a notice of surrender to be filed with the court. And often it was a new offense that was being prosecuted down in the district court. We saw a lot of larceny, assault and battery, driving offenses of some kind. And that was prosecuted down there.

“But notice of that had to get to Probation and that was a problem as well, because the different courts didn't really talk to each other. They had no way of communicating with each other. So we wouldn't always know that someone was being prosecuted in the district court for a crime or a violation of probation. It got better and when we did find out, the superior court probation officer would bring a notice of violation forward and we would go through the probation surrender process, generally an initial hearing and then a final hearing council would be appointed to the probation, unless the probationer didn't want it.

“There were many cases of technical violations—failure to report the biggest one probably, failure to stay employed, failure to attend counseling or to undergo random drug tests, or positive drug tests. And on those, the probation department and defense counsel would make recommendations, often the same, and often to continue the defendant on probation, or to extend his probation—perhaps with additional conditions, perhaps just continuing with a lecture from the judge. ‘You've now got a violation on your record; if you get another one, you're probably going to go back to do whatever sentence you didn't get.’

Paul continues, “We had violations that had taken on the nature of people not making restitution or not following whatever the program was for making restitution—and we would often extend probation for another two or three years, generally with the knowledge that they probably still wouldn't make restitution in the end, but at least they were under supervision for a couple of years.

“And those are all options available to the judge on the probation surrender case. There had to be hearing; there was some measure of due process, although it was considered to be a civil proceeding even though done on the criminal side. And the defense lawyer was appointed. The probation officer represented the state unless it involved a new charge in another court, in which case generally the police officer involved in the new charge had to come in and testify in order to establish probable cause to believe that it was this defendant who had committed that crime.

“And then the district attorney's office stepped in to help the probation officer. It was necessary to the probation officers; I don't think any of them were ever lawyers that I knew of, so they did not know of the niceties of actually having to do an adversarial process in court. And in the first session, when I was there, I would probably do one to four a day. And your hope as the judge was that the parties would agree on the violation and they also agree on a recommendation to the judge. It wouldn't take that long. If I had a case with three or four witnesses, or the parties were not in agreement, that just screwed up the system.”

A judge can bring down the hammer on a new charge just because the offender was on probation at the time. He or she can alternatively treat it as just another past conviction. But on the other hand there is no stopping the judge from also sentencing the offender to probation on the new offense, giving the offender two different terms consecutively or simultaneously to command his or her attention (assuming the original isn’t revoked).

While reforming agencies like DOP now refrain from even filing a VOP until an actual conviction, Paul reports that for judges to hold up (now that the communication issue between the courts handling the violation and the new offense has been resolved) is another matter. “For a time, some judges were finding a violation of probation but deferring disposition until after the determination of the new charge, but that has been appropriately discouraged because the idea of a probation violation hearing and disposition is to address the defendant's failure to abide by the terms of his original probation by obeying the law, and that violation should be considered and punished separately.”

After all, Paul points out, “The new charge will often take more than a year to resolve, and the optics of seeing someone out on probation awaiting disposition of the probation violation—and on bail on the new charge—are not good. Better to resolve the violation early—even if sentencing on that violation is deferred until after or at the time of sentencing on the new conviction. And deferring the probation violation determination should not depend on whether there is a conviction on the new charge—it must be weighed and considered on its own merits.”