Massachusetts Probation Violations: Some People Never Learn – Part 2 of 2

In my last post, I discussed the most recent Massachusetts OUI arrest involving state senator Anthony D. Galluccio, and his most recent, and rather novel, legal defense. I made the argument that while as a Boston criminal defense lawyer I zealously and aggressively fight for my clients in court, there comes a time, if a person is arrested multiple times for the same offense (such as OUI or a Massachusetts sex offense,) to own up to the problem, cease the excuses, and get effective treatment.

While Galluccio awaits trial on these latest charges, state officials are attempting to have his probation revoked, (which he was given from an earlier offense.) Probation revocation is a serious matter. It occurs when a person who has been sentenced to probation, violates the terms of that probaton. Whenever a defendant receives a sentence of probation, whether it is in place of a jail sentence or follows a completed jail sentence, that person enters into a written probation contract with state Pobation Department officials, wherein he/she agrees in writing to adhere to specific terms of probation. Those terms almost always both require, and forbid, certain conduct (probation terms are widely variable depending on the offense and circumstances; there is no “one sentence”.) If a defendant is found to have violated the terms of that probation agreement, the result can easily be a jail sentence. As part of a guilty plea agreement on the October 2009 charge Galluccio recently faced (leaving the scene of an accident,) he was ordered to serve two years of probation, which recited clear terms that he abstain from alcohol, undergo random urine tests, and use a Sobrietor, allowing officials to monitor his blood-alcohol content while he was at home.

The procedure that is usually followed for a probation revocation hearing, is that a “detention hearing” is first held, to determine whether the defendant should be jailed until a “full revocation hearing” can be later held. This is a more detailed, formal hearing to determine the probationee’s incarceration. For Galluccio, a revocation hearing has been scheduled for Jan. 21 in Cambridge District Court in Medford. He faces serious legal trouble.

In my experience as a Massachusetts OUI defense lawyer, most of my clients who receive probation sentences, understand and appreciate the importance of adhering to any terms of probation they might receive. Any client that I’ve advised to accept a probation sentence (which is not always advisable, as many of my clients are in fact not guilty of OUI,) “gets it” – they know how important it is to obey any terms they are given. But occasionally, I’ve seen other people who take a “Yeah, yeah – sure, sure,” attitude when agreeing to probation – never intending to adhere to the terms. It’s these people that I have no patience for: The ones that couldn’t care less what consequences their conduct may bring. For these people, they either simply don’t care, or they can’t control themselves. When I see such a person, and I’m asked to represent them after they’ve committed multiple offenses involving public safety, I’ll take a close look at their history. If I become convinced that this person has undeniable addiction or behavioral problems beyond their control, I won’t represent them.

I began this post by saying that I fight tooth and nail to defend my clients zealously and aggressively – but I also have to be able to sleep at night with a clear conscience. If I’m morally convinced that if I secure an acquittal for a potential client, that person will go out and commit the same offense, only to perhaps kill or seriously harm someone else, I’ll decline the case. That’s a tough call for a criminal defense lawyer – it’s not easy. And I know several of my colleagues who would disagree with me. But when I think of my wife or a loved one being the next potential victim, it’s a choice I’m brave enough to make. I’d rather see them get effective treatment, than an effective pass to go out an reoffend all over again. This point also illustrates the need for our criminal courts to be more focused on treatment than simply incarceration.

Oh, and by the way – Happy New Year to all my readers. Let’s hope that 2010 is a better year, in many ways, economic, social and otherwise, than was 2009.