You got probation and can breathe a huge sigh of relief now that you know you aren’t going to jail. But don’t forget, you aren’t free yet. Probation comes with conditions that you must meet. If you violate a condition, your probation can be revoked and you can be sentenced to time behind bars.
Probation conditions vary greatly. If your offense was minor and you had no priors, you may have received unsupervised probation. The terms are generally pay the fine and do not violate the law. On the opposite end of the spectrum, intensive probation can require an ankle bracelet, reporting to a probation officer weekly, drug tests, and restrictions on the hours you can be out of your home. Probation is preferable to incarceration, but to be successful, you need to understand what is required of you and you need to do it.
Failure to pay fines and restitution, positive drug tests, and additional arrests are the downfall of many people on probation. Don’t let these mistakes land you in jail. Here are 10 tips to help you avoid violations.
#1. BE AWARE OF THE PROSECUTOR’S HIDDEN AGENDA AND DON’T FALL
VICTIM TO IT.
Often, the state finds it easier to convict a person on a probation violation than the original charge. Therefore, the district attorney may agree to a reduced sentence that includes probation rather than going to trial. For example, a defendant (let’s call him Lou) is charged with felony possession of cocaine. He has a prior history and could receive active time. However, the cocaine was not in his immediate possession but was within his reach. He might be convicted after a trial or he might get off if the jury decides the drugs were not in his possession, and he had no intent to control them. Lou’s attorney and the district attorney work out a deal where he pleads to reduced charges and receives probation and no active time.
If Lou violates the terms of his probation by using cocaine and has a positive drug test, the case for the district attorney just got easier. All the district attorney has to do to send Lou to jail is prove that proper protocol was used to conduct the drug screen and a positive test for cocaine occurred. This is much easier than proving that Lou had the intent to control the cocaine in the original case. Here is the secret; a smart district attorney knows she may get a second shot at you on probation and will have a much easier case to prove.
#2. KEEP YOUR APPOINTMENTS WITH YOUR PROBATION OFFICER AND CULTIVATE A GOOD RELATIONSHIP WITH HIM OR HER.
No excuses, keep your appointments. You do not want your probation officer to come to your home or place of work looking for you. First, missing appointments is typically a violation of your probation. In addition, if a probation officer comes looking for you there is a better chance he or she will find additional violations. For example, probationer Joe is at work and cannot get a ride to the probation office. Joe fails to call his probation officer because he just does not want to go through the hassle. Joe goes home, and Bob comes over to chat with Joe. Bob lights up a joint at Joe’s home. You know how this ends; Joe’s probation officer chooses this time to visit Joe’s home because he missed an office visit.
Do your best to make a good impression on your probation officer. He or she has a lot of power. Your probation officer may be willing to overlook a minor violation if he or she believes you are sincerely trying to follow the rules and turn your life around.
Finally, make sure your probation officer always has your current contact information. If you move, be sure to let him or her know.
#3 KEEP ALL PAPERWORK HAVING TO DO WITH YOUR PROBATION.
Get yourself an expandable file folder and toss every piece of paper, certificate, and receipt that has anything to do with your probation into it. You want to have proof that you have paid your fines and restitution and attended all programs, classes, and meetings with your probation officer that your probation requires.
#4 KEEP GOOD RECORDS OF YOUR JOB SEARCH AND EXPENSES, ESPECIALLY IF MONEY IS AN ISSUE.
Money is an issue for most probationers. The court typically imposes fines, fees, and restitution on people who receive probation. You need to get a job. With a criminal record, that may be easier said than done. Without a job, you cannot pay the money ordered by the court. Even if you find a job, you may not have enough money to pay court-ordered fines and living expenses.
Inability to pay court-ordered costs, fees, and restitution can be a defense to a probation violation. Typically, a court must find that a probation violation was willful before probation is revoked. Therefore, the court may continue your probation if you can prove you made a good faith effort to pay.
Look for a job and keep a detailed record of when and where you searched. For example: “On Monday, Dec. 21, I sent applications to companies A, B, and C.” Even better: “On Monday, Dec, 21, I went to company A located on Main Street and applied for a job as a welder. I spoke to Mr. Jones, who is the personnel director for Company A, and his telephone number is 123-4567.”
Your probation officer may provide you with the forms to be completed that indicate where you have looked for a job. Do not overlook these seemingly minor details.
If your probation officer does cite you for failure to pay a fine, the form could be the critical piece of evidence at your probation hearing. Sure, you can say you went to Joe’s Garage or Ben’s Car Works at your hearing, but judges like to see something tangible, something they can put their hands on. Your attorney can approach the judge with the list to show your good faith effort.
Similarly, keep a record of your expenses. Rent, power bills, medical expenses, food, and other necessities can be a defense for failure to pay. In addition, keep the bills, which can be used as evidence. A word of warning, be sure the item is an actual necessity. For example, electricity is a necessity, cable or satellite television is not a necessity. Your attorney can assist you with what records or expenses need to be submitted to the court.
#5. CONSIDER PARTICIPATING IN AN ALCOHOL OR DRUG PROGRAM, EVEN
IF NOT REQUIRED BY THE TERMS OF YOUR PROBATION.
Alcohol and drugs abuse is often a sensitive area for people on probation. Many who are caught up in the criminal justice system have substance abuse issues and have not admitted the problem.
Frequently drug screens are a requirement of probation. The court may not require you to participate in a drug or alcohol rehab program, although it requires you to prove you are alcohol or drug free with periodic screenings.
Regardless of whether the court requires participation in a drug -alcohol support program such as Alcoholics Anonymous or Narcotics Anonymous, give serious consideration to such a program for two reasons. If you are cited for a probation violation, your good faith participation in a drug/alcohol program may improve your standing with the court. And, more importantly, if you do have a drug or alcohol problem, the program may help you overcome it and change your life dramatically for the better.
#6 FOLLOW NO CONTACT ORDERS.
No contact orders are a frequent probation restriction, especially if the crime is a domestic assault or involved a spouse or significant other. If the order says to stay away from your spouse, child or fiancé, stay away.
You may feel remorseful and want to make amends and repair the relationship. To make matters more complicated, your partner may be open to your advances and may agree to meet you and resume the relationship.
All too often, the result of a violation is the problems that created the original charge reemerge, and a second conflict occurs. Or perhaps, no conflict occurs but your partner just wants you gone. The police are called, and you face two charges, a probation violation and new assault charges.
The lesson is clear. Until the no contact order is lifted or expires, obey it.
#7 CHOOSE YOUR FRIENDS CAREFULLY.
If you are on supervised probation, major lifestyle changes may be required. For example, prior to probation, you could choose with whom you associated. However, probation conditions may forbid you from associating with people who have felony convictions. Probation may also put other restrictions on people with whom you may associate.
If the convicted felon is an immediate family member or someone at your job, an exception typically applies. Tell your attorney and probation officer and get their guidance.
In addition to the requirements of probation, you need to exercise independent judgment too. Do not associate with people who engage in behavior that will put you at risk. For example, assume your friend Bob typically has a little marijuana with him but has no criminal record. However, on this particular day, you are riding with Bob and he is speeding, not much, just doing 67 in a 55 M.P.H. zone, but he is stopped by a state trooper. Unfortunately, Bob has smoked in the car and the police officer smells the marijuana. The police officer searches the car and finds a small bag of marijuana lying on the console, right beside where you are sitting. If you are charged with possession, you may win the case, but why take the risk?
#8 EXERCISE CAUTION WHEN DRIVING.
Avoid traffic stops that could escalate into something more. Drive carefully, obey traffic laws, and make sure your vehicle has no equipment violations that would attract police attention. Keep your license, registration, and insurance current and on your person or in your vehicle. Pay outstanding traffic tickets.
Don’t loan your car to anyone or at least to anyone who poses a risk of getting stopped. Similarly don’t ride with anyone unless you are confident the person is not involved in any illegal activity that could get you into trouble.
#9 KNOW AND FOLLOW ANY GUN POSSESSION RESTRICTIONS.
You may not be allowed to possess a gun due to probation restrictions or a felony conviction. The restriction may extend beyond actual ownership of a gun or having the gun in your hands. The prohibition can include a gun that is in your home or that you have access to. Even if the gun is owned by someone else in your household, you could possibly be charged with violating probation.
Raise this issue immediately with your attorney and probation officer. If you wait and the probation officer finds a gun in your home during a home inspection, you will have major problems. The rules and laws vary from state to state and possibly someone in your household can have a gun, but make sure you get this right from the beginning or you could have an additional charge of possession of a firearm by a felon and a probation violation.
#10. IF YOU ARE REQUIRED TO REGISTER AS A SEX OFFENDER, BE SURE TO REGISTER.
People convicted of sexual offenses typically have to register their address. Yes, registering is embarrassing. Registering makes it difficult to rent a house or apartment and makes it hard to find a job, and you may not really pose a risk to the community. However, all the above excuses are irrelevant. One of the last things a judge or district attorney wants to be accused of is letting a sexual offender off the hook who then harms another person. So, if you are cited by your probation officer for failing to register, your attorney will have a tough time convincing the judge to continue your probation.
Another word of warning, the requirement to register often extends beyond the period of probation.
- To ensure successful completion of your probation, make sure you know, understand, and follow the restrictions placed on you. Your best resources are your attorney and probation officer.
- Know what your obligations are when you receive probation. Do not guess and do not wait; find out the day you are placed on probation.
- Save all probation-related paperwork.
- Attend all required meetings with your probation officer.
- If money is a problem, maintain financial records and a history of job searches.
- Get help with any alcohol or drug problems.
- Do not associate with people who break the law or engage in questionable behavior.
- Follow traffic laws and avoid attracting police attention.
- Obey no contact orders.
- Know and follow gun possession restrictions, which may mean you cannot live in a household with a gun regardless of who owns the gun.
- If you are required to register as a sexual offender, do it.
“Ban the Box” Laws:
Removing Barriers to Employment After a Criminal Conviction
The collateral consequences of a criminal conviction can last for years and have a detrimental effect on a person’s voting rights; gun rights; immigration status; eligibility for federal assistance programs (e.g., SNAP or federal student financial aid) and more. One of the most significant of these consequences is the negative impact a conviction has on a person’s ability to obtain work. Anyone with a criminal conviction faces an uphill battle when it comes to getting hired. Over the past two decades, however, several states and localities have passed laws aimed at reducing some of the employment barriers faced by ex-offenders. This so-called “ban the box” legislation limits the ability of employers to inquire about criminal convictions during the hiring process.
- POST-CONVICTION EMPLOYMENT BARRIERS
Post-conviction barriers to employment are real and significant. All 50 states and the federal government impose some sort of employment licensing restrictions on individuals with a criminal conviction. The federal government, for instance, prohibits convicted felons from working in airport security. Several states prohibit an individual with a felony conviction from working as a firefighter, a real estate agent, a contractor, doctor, barber or hairdresser. In addition, doctors, attorneys, and certified financial planners and accountants may face professional censure from licensing agencies as a result of a conviction. The stigma of a conviction and the common (but often unfounded) fear many employers have of potential liability for hiring a convicted felon also create unwritten, but nonetheless real, barriers.
Barriers to employment attach whether a conviction stems from a guilty plea entered as part of a plea bargain or from a jury verdict of guilty. While conviction of a felony (generally, a serious crime punishable by more than a year in jail/prison) typically creates the most problems, some types of misdemeanor convictions can make finding work challenging as well.
To make matters worse, obtaining and maintaining employment often is a condition of probation, but these barriers to employment can make it difficult, if not impossible, to meet this condition. Under those circumstances, an inability to find work can cause more than just financial stress; it can land a person in jail for a probation violation, despite his or her best efforts to comply.
- A BRIEF HISTORY OF BAN-THE-BOX LAWS
Hawaii passed the first ban-the-box law in 1998. Still in effect today, the legislation prohibits both public and private employers from asking about convictions on job applications. It also prevents companies from delving into an applicant’s criminal history until after extending a tentative job offer. Furthermore, in order to revoke an offer based on a criminal conviction, an employer must be able to show a logical relationship between an applicant’s criminal history and the job requirements.
Hawaii was first, but many have followed. As of 2020, 35 states and the District of Columbia have passed laws limiting the rights of employers to inquire about criminal convictions. In addition, approximately 150 localities across the country – including Los Angeles, San Francisco, Baltimore, Chicago and Rochester — have similar legislation on the books. According to the National Employment Law Project (NELP), approximately three-quarters of the population live in a jurisdiction with some type of ban-the-box law.
While no federal law currently prohibits inquiry into an applicant’s criminal history, regulations imposed by the U.S. Office of Personnel Management (OPM) prohibit most federal agencies from asking about criminal history on job applications. Plus, in December 2019, Congress passed the Fair Chance to Compete for Jobs Act (FCA) as part of the National Defense Authorization Act (NDAA). This federal ban-the-box legislation applies to all federal agencies, as well as federal civilian and defense contractors. It prohibits covered employers from asking an applicant about arrest and conviction history until after a conditional offer of employment has been made. The FCA requires federal oversight entities to adopt procedures for reporting violations of the law. It also provides for a series of escalating penalties for violation of the law. The FCA is slated to take effect two years after the NDAA is signed into law by the president (so, i.e., in December 2021).
III. SCOPE OF STATE AND LOCAL BAN-THE-BOX PROTECTIONS
Several different approaches exist when it comes to ban-the-box laws, but even the least restrictive prohibit employers from inquiring about convictions on job applications. That is, employers cannot ask applicants to check a box on an employment application to disclose whether they have ever been arrested or convicted of a crime [e.g., “___ Yes / ___ No (check one)”]. Beyond this basic protection, a great deal of variation exists when it comes to what these state and local laws do.
Whether the law applies to public, private or both types of employers is a major differentiating factor. Most of the 35 states with ban-the-box legislation limit public employers’ ability to inquire about convictions when hiring. The District of Columbia and several cities, including New York City, Rochester and Los Angeles, extend the law to government contractors as well.
Some states take things even further and apply the law to most private employers. States with this approach include California, New Mexico, Vermont and Washington. Philadelphia, Spokane and 16 other localities have similar rules.
In addition, ban-the-box legislation typically applies only to workplaces with a certain minimum number of employees. The vast majority of these laws do not apply to most small businesses. California’s statute, for instance, only covers workplaces with more than 5 employees. Austin’s legislation excludes companies with fewer than 15 employees. In the District of Columbia, the magic number is 10 or more employees.
Another difference among ban-the-box laws across jurisdictions involves the point during the hiring process at which an employer may inquire about an applicant’s criminal history.
In states, like Connecticut, which only prohibit questions about criminal convictions on initial applications, employers can legally go down that road as soon as a candidate has submitted a completed application and officially applied. In Illinois, companies can consider the criminal record of any individual invited for an interview. Other states and localities allow employers to inquire about criminal convictions at the end of an interview or after the selection process has been completed. Still other jurisdictions only permit businesses to ask about a criminal conviction after the extension of a tentative job offer.
Use of Information
What companies can do with criminal history information also varies. Some states and localities place no limits on how employers can use information about criminal convictions. Others, such as Hawaii, California and Colorado, only allow businesses to consider convictions that have a reasonable relationship to the type of work the candidate will be expected to do.
Notice requirements vary from jurisdiction to jurisdiction. Some states demand that employers give applicants copies of their criminal history. Others insist that businesses notify applicants in writing of why they were not hired if the hiring decision was based on the individual’s criminal history. A few jurisdictions have established appeals processes that candidates can use to challenge adverse employment decisions by presenting mitigating information.
Almost all ban-the-box laws carve out exceptions for certain professions, such as law enforcement personnel, healthcare workers and childcare professionals. All jurisdictions permit employers to consider criminal convictions that are closely related to core business functions at some point during the hiring process. For instance, no law anywhere prohibits a transportation company from inquiring about and considering drunken-driving convictions when hiring new truckers.
- LEARN MORE
With the variations in state and local laws, you may be wondering, “How can I know what law (or laws) applies to me?” Here are three easy-to-access resources for more information:
- NELP has a great website that provides detailed information about state and local ban-the-box laws, including a quick-reading, comprehensive chart: (a) Visit https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/#Chart of Local Fair Chance Policies; (b) click on the box at the bottom of the page [“download complete publication”] to download the NELP ban-the-box resource guide; (c) find and review the chart at the end of the guide.
- Google “ban the box [your state]” or “ban the box [your county].” You will find lots of leads and links.
- Reach out to a local legal aid organization and/or your local chapter of the ACLU. Attorneys at either of these organizations should be able to answer your questions or refer you to someone who can. This can be particularly useful if you live in a state or locality without ban-the-box legislation; in that instance, it may be helpful to speak with an employment attorney about whether your jurisdiction’s fair employment laws cover criminal-history-based employment discrimination.
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