Despite the best efforts of defense counsel the vast majority of criminal cases end up with a plea bargain. In Kaufman County the vast majority of plea bargains involve probation. In general, compliance with probation terms means a defendant can avoid jail time.
Here is page 1 of an Order Imposing Conditions of Community Supervision for Kaufman District Courts. Let’s take a closer look at what can send probationers to jail. (Note- Probation and Community Supervision are the same thing).
First their are the obvious rules 1,2,6, 8,13 etc. Report to probation, don’t use drugs or commit any more crimes, take drug tests.
Then they are the “give us our money” rules-14, 15, 16, 17. Nothing raises revenue for the government like the threat of incarceration.
Now for the stupid rules
Rule 3- “Avoid persons and place of disreputable or harmful character including… any person convicted person convicted of a crime or on community supervision.” What makes a person disreputable? How does a place have “harmful character?”
Besides being vague this rule is a logistical impossibility. Texas has more probationers than any other state, over 420,000. Who does not have at least one friend, family member, or co worker who was ever convicted of any criminal offense? Complying with this rule would be a Sisyphean challenge and make George W. Bush off limits to probationers.
Rule 5- Don’t gamble, buy lottery tickets, or play “any game of chance” ????? This stupid rule is so broad it would seem to cover the McDonald’s Monopoly game and your office March Madness bracket. Is the road to criminal recidivism paved with scratch off tickets? Rule 11- Stay in Kaufman County, counties that touch Kaufman county (or the county you live in, and counties that touch that county.) Probationers are not nuclear waste. They have jobs, families, and responsibilities that require travel.
Stupid Rules in Action
Let’s pretend that all probation rules were enforced with equal vigor. Joe Defendant is on probation in Kaufman County for marijuana possession. Joe lives in Kaufman and works in Frisco. According to rule 11 Joe is risking jail by going to work (Collin County doesn’t touch Kaufman). However, rule 9 requires Joe to maintain employment. Joe quits and gets a new job at Fridays. However, rule 4 prohibits Joe from “going places where alcoholic beverages are sold, served, or consumed.” So Joe quits again and gets a job at Radio Shack. Joe learns that his new boss at Radio Shack has a DWI from 1982. Joe, wary of stupid rule 4 quits and looks for work again. Being out of work, Joe is behind on his payments to probation. Desperate, Joe decides to buy one lottery ticket and wins a million dollars!!! He pays off his probation fees and works to start a new life. First, however Joe’s probation is revoked for gambling, going to a bar (Friday’s), and hanging out with criminals (boss), and he serves 90 days in jail.
Reality of Stupid Rules
These stupid probation rules are binding but not always vigorously enforced. Most probation revocations I see are for committing a new crime, or for drug use. Rules that do not promote public safety or should be scrapped. Just because we can make probationers do something does not mean that we should.