Lie, or You’re Going to Violate Probation

We’re continuing our series on Violations of Probation (VOP). It’s in the air here in Orlando, so why fight it? The focus today is on the money making mandatory counseling sessions that come along with some probation sentences.

“Any recommended treatment or counseling” is a common phrase used by judges, and it translates: “you’re about to pay a boat load of money, and time, to some counseling program that has no real incentive to release you”. Imagine being in a business where you can dictate how long a citizen must continue to make monthly payments to your company–or they go to jail! Sounds like the business model of Big Pharmaceutical companies that would rather have patients on a monthly pill popping program than find a cure.

Don’t get me wrong. Many defendants need counseling. Many human beings need counseling. But, every single DUI conviction comes with alcohol treatment and counseling–even if no alcohol was found in the person’s system! Does that even make sense? No, but it makes money. Yes, we need to help the defendants that truly have an addiction, and find a way to weed out those who don’t.

For example, every person convicted of domestic violence battery must attend and complete a batterers intervention program. No problems there, right? Wrong. This program requires the ‘participant’ to admit to having battered another human being. Participation requires an admission of guilt. That’s when a probationer is faced with the decision to simply lie and complete the treatment–or tell the truth and be terminated from the treatment. Of course, termination from treatment will then violate probation, and a probation violation carries an arrest plus jail or prison time. So, what do you do?

Let’s rewind to see what gets a person into a treatment program in the first place. For many, a crime was committed and they’re paying the price. However, not everyone who enters a plea is guilty. Many folks chose to enter a no contest plea rather than risk losing everything after a trial. For those of you who don’t know, the increase in mandatory minimum sentences (especially for trafficking in oxycodone cases) has made it more common for innocent defendants to enter a plea rather than risk mandatory prison time over $50 worth of pills.

The problem is, that the “treatment” program that comes along with a guilty plea also requires an admission of guilt. So, if a defendant doesn’t want to risk mandatory jail on a domestic battery charge, a guilty plea will require counseling. But, the batterers intervention counseling program requires an admission that, yes, you have beaten your wife/girlfriend/etc. if you tell the truth–that you are innocent and simply entered a plea so as to not lose your job/home/sanity–they’ll terminate the treatment and that termination will send you to jail on a violation of probation!? A classic Catch 22. It happens more often than you think. Let’s take a look at a few cases in which the defendant’s stood up to the treatment programs, told the truth, and were sent to jail.

In Bennett v. State, 684 So.2d 242 (Fla. 2nd DCA 1996), Bennett violated his probation on two battery charges arising from an initial charge of handling and fondling a child under the age of sixteen. The violation was filed after Bennett was kicked out of sex offender treatment due to his refusal to admit to actually committing the underlying molestation. This is very common in treatment programs mandated by the courts–the defendant must admit to molesting, must admit to drug addiction, or must admit to battering women in order to successfully complete the program. However, some innocent probationers are not comfortable with such lies. Bennett was just such a person.

Bennett was ordered by the court to complete an out-patient sex offender treatment program if recommended. Of course, these type of allegations ALWAYS generate a treatment recommendation, so it’s a waste of the court’s breath to utter the words “if recommended”. But, out of habit and in an effort to sound reasonable, most courts continue to repeat the mantra. Anyway, Bennett was found guilty of violating his probation, but on appeal he argued that the sentencing judge only ordered him to complete the treatment, the order never required Bennett to admit to the underlying offense. No condition of probation required him to admit to a counselor that the sexual acts charged occurred.

The appeals court agreed, and overturned his violation of probation, holding that “Bennett’s refusal to admit to the sexual conduct does not constitute a willful and substantial violation of the terms of his probation” (remember that phrase “willful and substantial”. It comes up again and again in VOP cases).

A similar result was reached in Diaz v. State, where Diaz refused to admit to committing a sexual act upon a child during sex offender counseling, and the State sought to violate his probation, but the appeals case overturned the violation reasoning that “if it is a trial court’s determination that an admission of guilt to specific conduct to a counselor is necessary, then the defendant should be so advised before a plea agreement is approved. Here, the appellant did not admit his guilt to the specific conduct in plea negotiations or at any court hearing [he entered a best interest no contest plea], and no term of probation requiring him to do so was imposed.” 629 So.2d 261 (Fla. 4th DCA 1993).

Bennett and Diaz had one thing in common. They both went to prison because they wouldn’t lie. What, innocent people in prison? Really?