Imagine having to report to a person in an office every week. If you are late or forget, you could go to jail. Imagine having to keep a job or go to school full time. If not, you could go to jail or, at the very least, explain to a judge why you shouldn't go to jail. If you want to visit the Mainland or even Oahu, you have to check in and get permission from an officer of the court. If not, you could be considered an absconder and may be arrested.
In some cases, you could get a curfew. If you're out after dark, you could get arrested. Perhaps you have to pay for an assessment to see if you are a drug addict or an alcoholic. On top of that, you may have to pay court fees and fines on a monthly rate for four years or until it's all paid up.
These are the most basic conditions of probation.
This newspaper duly reports on the fates of criminal defendants. These pages feature colorful quotations from judges, prosecutors, defense lawyers and sometimes the defendants themselves that sensationalize the event of a sentencing hearing. Details about the offense are described. Sometimes it seems innocuous. Other times it could be horrifying.
But no matter what the offense is, the end is always the same: The judge issues his or her sentence. Sometimes it's prison. A defendant is carted away by the sheriffs.
And then there's probation. I'm always struck by the letters of outrage to the sentencing judges who order a person to be put on probation instead of in prison. One thing the newspaper never really discusses is probation. What exactly is it? Is it hard? Why is it such a common disposition in a criminal case - even when there are crimes of violence?
Here are the basics. Probation is an alternative to prison. Instead of going off to places like Halawa prison on Oahu or private facilities in Arizona, the probationer stays right here and out of custody. Rather than being under surveillance and guarded 24 hours a day with the state footing the bill for housing, meals and medical services, the burden shifts to the probationer to find a clean and decent place to live, get a job and become a productive member of the community.
The only real catch is that the court orders a list of conditions by which the defendant is required to abide. The most common condition is checking in with a probation officer. These officers work for the Judiciary and keep track of the probationer's progress. If the court orders complete sobriety and drug testing, it's the probation officer's job to do that. Probationers are required to keep a job or go to school full time. Most importantly, they are not allowed to pick up another conviction.
If probationers violate the terms, their probationary status could be revoked and the judge would sentence them all over again. In some cases, they could again get probation and the actual sentence could be even longer than a prison sentence.
So why do people get so upset when a person is sentenced to probation? Why is there such a vehement demand for prison? Prison is very hard on the defendant. Prison rips a person out of the community and family life. The prisoner is left in isolation where he or she acquires no skills, formal education or training. It doesn't encourage anyone to do anything but wait for the term to end.
It's costly for the community too, but stats are hard to come by. Each state pays a different bill to house prisoners. Alabama, for example, spends something like $17,285 a year for a single inmate. New York City, on the other hand, spends a whopping $168,000. Hawaii is in the middle. The state attorney general's office reported that in 2009, it cost $118 a day for a single inmate, which comes to about $43,000 a year.
Probation - without guards, meals, shelter and medical services - is certainly cheaper. On top of that, probationers are required to be productive. They have to keep jobs, and probation officers almost always require pay stubs as proof of employment. They have to pay off fines and any restitution.
Seems like a win-win situation for society and the probationer. And yet, we still demand prison for folks who are being sentenced. Granted, punishment is always a factor to consider at sentencing, but it's not the only one. It should never be the main reason to sentence somebody.
There will always be those who wish to indulge in the need to severely punish offenders. But prison isn't a solution for most folks. We just can't afford it.
* Ben Lowenthal is a trial and appellate lawyer who grew up on Maui. His email is firstname.lastname@example.org. "The State of Aloha" alternates Fridays with Ilima Loomis' "Neighbors."