Bootstrapping Convictions

16 Aug Bootstrapping Convictions

The presumption of innocence and the requirement that the state prove a defendant’s guilt beyond a reasonable doubt are two (if not the two) bedrock principles in criminal law.

Yet when a defendant is on probation is charged with another crime, the probation revocation hearing throws both principles out the window.

When a defendant is placed on probation, one of the conditions will be that the defendant commit no crime while on probation. But what happens if the defendant is later charged with a crime?

The probation officer will send a letter to the local prosecutor, who will then initiate proceedings to revoke the defendant’s probation. The main issue in those proceedings will be whether or not the defendant committed the crime, but in a revocation hearing, the state will have two advantages it doesn’t have in a trial. First, the state must only prove it is more likely than not that the defendant committed the crime. In a trial, the prosecution would have to prove their case beyond a reasonable doubt. Second, the defendant is not entitled to a jury. Instead, the judge is the fact-finder. Both of these factors make it significantly easier for the state to prove its case, and therefore much more likely that the defendant will be found to have violated the terms of his or her probation.

What’s really going on here, though, is that the defendant is having his criminal charge adjudicated without the fundamental protections on which our criminal justice system is founded. In their present form, probation revocation proceedings allow prosecutors to bootstrap a conviction on the underlying charge.

In fact, this can happen even after the defendant is tried and acquitted of the charge that led to the revocation proceedings. Despite the acquittal, the defendant might still be found to have committed the crime because of the distinct advantages the prosecution has in those proceedings. The prosecution gets another bite at the apple, and it has an easier case to make.

Thus, whether a probation revocation proceeding occur before or after trial on an underlying charge, it provides the state with a procedural device that is used to deprive defendants of fundamental rights, or at least to render them inconsequential, and their effect is to greatly increase the probability that a defendant will go to jail.

What surprises me most about all this is that prosecutors will freely admit this is exactly what they want to do. If they can get the defendant’s probation revoked, they can usually also get a plea on the charge they used as the basis of the probation revocation. They will explain to you that it’s just a matter of judicial economy.

The problem, of course, is that one serves two masters in seeking both judicial economy and the truth, unless jury trials are obstacles to, rather than servants of, the truth. Using probation revocation proceedings to try a charge before a judge rather than a jury, and with a preponderance rather than a reasonable doubt standard, almost invariably resolves the underlying charge as well, but it does so by depriving the defendant of a host of protections he or she would otherwise have. This should be a cause of grave concern.