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The Hobson’s choice of agreeing to unsavory probation conditions or risking a more severe sentence

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Hobson’s choices are the pits. They are named for Thomas Hobson, who rectified overworking any of his horses by giving his customers the choice of renting the next horse in line, or none at all, from Hobson (not this Hobson) at least.

What about criminal sentencing proceedings? Understandably, criminal defendants place a high premium on receiving as little active jail or prison time as possible (except for the rare person seeing jail as “summer camp” where he can hang out with his buddies). However, probation length and probation conditions are no prize, nor is the potential hammer of having some or all of a criminal defendant’s suspended incarceration time imposed in the event of a probation violation adjudication.

What is a convicted criminal defendant to do, then, when presented with the virtual Hobson’s choice between accepting the sentencing judge’s direction to enter a non-confidential sex offender program as a probation condition or risking a much harsher sentence for declining such program participation?

Watch out about that non-confidential program participation’s biting the defendant in the butt, which is what happened to Juan Elias Lara.

In 2008 in Grayson County, Virginia, Circuit Court, Lara was convicted of aggravated sexual battery of a mentally incapacitated victim. He was sentenced to twenty years suspending seventeen of those years, conditioned on probation obligations including participating in psychological counseling. U.S. v. Lara, ___ F.3d. ___ (4th Cir., March 14, 2017).

During Lara’s intake interview for sex offender treatment, “Lara disclosed details about his sexual history, including his sexual contact with minors and commission of forcible sexual assaults, as well as his involvement in two murders. A few weeks later, Lara confirmed these details in a polygraph examination, and signed a written statement describing the incriminating information he had provided.” Those were startling disclosures to say the least. Subsequently, Lara signed an acknowledgment that his communications with his sex offender treatment providers were not confidential. At some point, Lara’s sex offender counselor reported his admissions of past criminal activity to the Virginia Department of Corrections, which apparently took no action on the matter.

Later on, Lara skipped town without telling his probation agent, moved to Texas, and got charged federally with violating his federal obligation to register in Texas as a convicted sex offender. Lara entered a guilty plea to that federal offense, under 18 U.S.C. § 2250(a), for failure to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA).

Lara then found that his admissions to his Virginia sex offender counselor were to bite him in the butt, bringing him the statutory maximum penalty of ten years in prison for his SORNA violation.

Lara t had no problem okaying the federal sentencing judge’s consideration of Lara’s admissions to Lara’s prior sex offender counselor, finding that Lara waived any confidentiality (starting with such a waiver when signing for probation) in such admissions, and had no Fifth Amendment privilege against such disclosure, starting with his never having asserted the privilege.

Lara acknowledges a defendant’s difficult choice between accepting probation conditions versus risking a harsher sentence, but proclaims:

Probation is ‘one point . . . on a continuum of possible punishments’ imposed on those convicted of a crime. Samson v. California, 547 U.S. 843, 848 (2006) … Accordingly, courts administering probation ‘may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.’… The governmental interest in enforcing liberty-restricting conditions is especially strong when supervision is employed as an alternative to incarceration, including when, as here, a court partially suspends a sentence of imprisonment. See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365 (1998) (‘In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements.’).”

The Fourth Circuit rejects Lara’s Fifth Amendment claim as follows:

The Supreme Court has explained that in order for conditions of probation to provide a sufficient ‘penalty’ to overcome a defendant’s free choice to remain silent, the threat of revocation must be nearly certain. See id. at 437–38 (holding that the threat of revocation of probation was not sufficient to trigger self-executing Fifth Amendment protections because ‘[t]here is no direct evidence that [the defendant] confessed because he feared that his probation would be revoked if he remained silent,’ and ‘[r]evocation is not automatic’ for violation of probation conditions); see also United States v. Ramos, 685 F.3d 120, 128–29 (2d Cir. 2012). The factual record before us conclusively demonstrates that Lara answered freely and without any suggestion of invoking his Fifth Amendment privilege, and that he was never threatened with the imposition of a penalty sufficient to overcome his freedom of choice to remain silent.”

At the very minimum, Lara  is enough to convince every criminal defense lawyer early on to fully explain to their clients the risks inherent in breathing even one potentially incriminating utterance to counselors for any probation-required program (and to anyone else for that matter), and to work with their clients to minimize those risks, starting with the lawyer’s reviewing all documents their clients are asked to or directed to sign, being present at the pre-sentence report meeting and probation intake meeting where possible, training their clients not to wag their tongues about matters they are not obligated to discuss, and training their clients how to answer questions accurately and honestly and in a way that is less at risk of being misconstrued and mis-reported.