Being convicted of a crime is no picnic. When a probation agent is involved, the picnic can seem to gather even more red ants.

Talk about potential and actual sentencing with criminal defendants often focuses so much on the length of active jail time — meaning the time that will be served in jail no matter what — that criminal defendants too often lose sight of the incarceration hammer that may slam down on them if they are found guilty of violating probation. Criminal defense lawyers must be sure to discuss probation with their clients in the process of addressing sentencing possibilities. Even though Virginia voluntary sentencing guidelines, for instance, focus on active jail time, probation plays a big role in sentencing.

Here are a few practical and helpful thoughts for convicted people to consider in addressing probation as part of case negotiations and sentencing, and in dealing with their probation agents. Some of these tips will also be helpful for criminal defendants dealing pre-trial with their pretrial supervision agents:

– Dentists and probation agents likely feel widely unappreciated. Consequently, probation agents appreciate when their probationers are easy to deal with. That does not mean that probationers should not assert their rights as needed, but that it goes a long way for probationers to follow the rules of probation, including not missing meetings nor arriving late with their agent.

– Probation agents ordinarily take the form of employees of a probation office or employees of the Virginia Alcohol Safety Action Program (VASAP) (whose abolition I advocate).

– The initial contact with a probation agent usually starts with a probation intake meeting, a VASAP intake meeting, or the start of the process of preparing a presentence report.

– A conviction does not automatically deprive a defendant of his or her Fifth Amendment right to remain silent with a probation agent, but such silence does not guarantee no backlash from the judge or probation agent for the silence.

– Non-United States citizens should beware anytime someone in the criminal justice system asks their immigration status, whether those questions come from police, jailers, judges, or probation agents. For starters, people should know about their Fifth Amendment right to refuse to answer questions about their immigration status.

If the probationer has been convicted of an offense that can have adverse immigration consequences on the defendant (for instance deportation from the United States, inadmissibility to return to the United States, or denial of adjustment of immigration status), not answering the probation agent’s question about immigration status, might or might not have more adverse consequences than answering. If the probation agent knows the defendant is not a United States citizen, the agent might report the defendant to the immigration authorities. If the defendant remains silent, the hope is that the agent will not simply tell the immigration authorities that this might cause suspicion about whether the defendant either is not a United States citizen or is in the United States without a current and valid visa. The probationer in advance should obtain advice from a qualified lawyer.

It is ideal for the defendant’s criminal defense lawyer to accompany the defendant to his or her intake with the probation agent. The criminal defense lawyer also can tell his or her client about the option to decline to answer any sensitive questions to the probation agent before consulting with the lawyer on the matter.

– Both at the state and federal level, presentence reports — prepared by probation agents — are often a very important part of the felony sentencing process. Ideally, the defendant will not complete any presentence report questionnaires without the review and advice of his or her lawyer, and the criminal defense lawyer ideally will be present when the defendant is interviewed for such a report.

Whether by governing rule or practice, I expect that federal probation agents will permit my presence when interviewing my client for a presentence report. However, it might be harder at the Virginia state level than at the federal level for a criminal defense lawyer to convince the probation agent to permit the lawyer’s presence at said interview. In Fairfax County, for instance, a Circuit Court judge once issued a non-binding opinion that criminal defendants do not have the right to the presence of their attorney at such interviews, and Fairfax County probation agents seem to adhere to declining the presence of lawyers at such interviews.

– Probation conditions are many. They always include a prohibition against committing new crimes and, in Virginia, to be of the undefined “general good behavior”. For supervised probation, the probationer must meet with the probation agent when told, submit to drug and alcohol testing when told, notify the agent of any new criminal charges (if not also to notify of any contacts at all with law enforcement), permit the agent to visit the probationer’s home and work, notify the agent of a job change, check about moving, and sometimes get permission before leaving the area. And the list goes on, including the overbroad — and sometimes challengeable — catch-all of following all lawful directions of the probation agent.

Does that feel like being jailed while outside jail? And probation pressure and limitations can be particularly onerous on those convicted of sex-related felonies, in Virginia.

– For defendants who are otherwise in compliance with their probation conditions, they can stay in the good graces and out of the radars of their agents by simply doing the following with their agents: timely returning the agent’s phone calls and emails, and always arriving on time for meetings with the agent. When the foregoing circumstances exist, if the probationer rarely needs to request a rescheduling of a meeting with the agent, the agent might be more flexible about doing so. However, the defendant can find himself or herself in a bind if s/he misses the meeting without getting advance approval of the agent or the agent’s supervisor.

– Many of my clients tell me how unresponsive are their agents to phone calls and emails from my clients seeking to reschedule meetings, seeking permission to leave the area for work or personal reasons, or seeking help with obstacles with scheduling or other matters with private or government programs (for instance alcohol or drug programs) required as conditions of probation.

This is a two-way street. Yes, agents are constantly tied up with meetings with their probationers, phone calls with probationers and others for such matters as preparing presentence reports, in court, and offsite to visit probationers in jail and at their homes and work. Nevertheless, an agent should not be heard to claim that a probationer fell out of touch with the agent if the agent is not going to timely respond to probationers’ communications, nor to keep good records of the times that the probationer did keep in touch. Nevertheless, because not all probation agents are going to keep good records of their communications with probationers, it is all the more important that a probationer delivere his or her agent a timely written advance memorialization (for instance by email, fax, or hand delivery) of any permission the agent provides for such matters as rescheduling an appointment or allowing travel outside of the area.

– An apparently common response by probationers who get new convictions is to stop having contact with their probation agent, on the theory that they are going to get violated on probation, so why bother. Yes, a new conviction might spell a probation violation judgment and might bring incarceration with it. However, if the probationer throws in the towel by not trying to mitigate probation violation punishment — for instance by continuing to visit the agent — the outcome of a probation violation proceeding is all the more likely to be worse than otherwise.

– Even if a probation condition is timely to report a new criminal charge, that does not necessarily preclude satisfying that condition through one’s lawyer, if the lawyer is willing to do so. When I report a client’s new criminal charge, I usually use such language as: “Dear [probation agent’s name]: This letter fulfills my client and your probationer [insert probationer’s name]’s obligation to inform you of any new criminal charges. As detailed in Mr. ___’s attached charging document, he is accused of the crime of __________, with his next court date being ___________ in the ________________ County General District Court. Clearly, Mr. _______ remains presumed innocent in this case, so I trust that no probation violation action will be taken before his new case is resolved. However, if a probation violation hearing is sought, I ask that my client be permitted voluntarily to appear at such a hearing, and that an arrest warrant not be sought. Please be aware that Mr. ____ asserts his right not to discuss his new case with you. If you seek any further information about Mr. ___’s new case, I will be delighted to speak with you. Unless you tell me otherwise within seven days of the date of this letter, I will assume you agree that this letter satisfies Mr. ____’s obligation to notify you of any new criminal charges.”

The lawyer’s communicating the new criminal charge to the probation agent hopefully will preclude the agent’s asking the probation about the details of the new charge. For the probationer to tell the agent of his level of culpability, or not, for the new criminal charge — or to provide other details of the new criminal charge — can boomerang back at him.

– A probationer charged with violating probation needs to obtain a qualified lawyer, whether that be his or her original lawyer or a new one. Serious incarceration and other risks can be at stake. I write in detail about the probation violation defense process here. In the event that a probationer is found in violation of probation, s/he needs to know the options, deadlines, and procedure for seeking appellate relief therefrom.

With all of the above said, probation agents are humans. They are busy. Some very much want to help, but some from that category have gotten jaded or worn out along the way. Common courtesy to probation agents can go along way. They can be persuaded, to a point. However, when a probation agent is overstepping his or her bounds or otherwise is making matters difficult for the probationer, it is time for the probationer to obtain assistance from a lawyer.