Washington Misdemeanor Probation Violations

Misdemeanor probation violations in Washington are a bewildering experience for many people.

In many jurisdictions, people are actually sentenced to the maximum sentence allowed by law, 364 days in jail for a gross misdemeanor, or 90 days for a simply misdemeanor, and then have most of that jail time "suspended." So, that jail time is just dangling over their head for the period of their probation, which coincidentally is sometimes also the maximum allowed by law, two years or five years, depending on the offense.

As an example, if you were to be convicted of Theft 3rd Degree, a gross misdemeanor, you may be sentenced to 364 days in jail with 363 days in jail and two years of probation. That means you only serve one day in jail up front. Let's say one of the conditions of your probation is not to commit any law violations during your probation. No criminal law violations seems to make sense, right?

So, roughly 18 months after your sentence, you go fishing without a license, get a trip permit violation, or fail to have the title of a vehicle transferred to you within 45 days. Unbeknownst to you, these are crimes. So, you get charged with Failure to Transfer Title within 45 Days. You go to court for that, you plead guilty and get a 364 day sentence with 364 days suspended (no jail time up front) and a fine. Then, a month later, you get a summons on your Theft 3 case for a probation violation alleging that your crime of Failure to Transfer Title violated your probation on your Theft 3. Yikes, doesn't that violate double jeopardy to be punished twice for the same crime? Nope - not according to the Courts of Washington. In fact, even if you went to trial and won your Failure to Transfer Title case, they could still bring a probation violation against you and win it under City of Aberdeen v. Regan, a 2010 Washington State Supreme Court case.

So, what happens to you at this probation violation hearing? During the course of your probation, the Court has the discretion to impose any or all of your suspended sentence. So that 363 days that was not previously imposed can be utilized to sentence you. There are no guidelines and very few limits on the discretion of the Court. This should be juxtaposed with a felony community custody violation (felony probation), which is subject to guidelines laid out under RCW 9.04A.737 and also under the Department of Correction's agency guidelines.

There are no similar guidelines for misdemeanor probation. As you can imagine, this can lead to a dramatic disparity in sentencing from Court to Court. You could have no jail time revoked, 10 days of jail revoked, 30 days of jail revoked, or 180 days of jail revoked (revoked meaning you have to serve that amount of time as your sentence) and as long as the Court has some sort of justification for its ruling, you have no legitimate means of challenging the probation violation revocation.

Further, you are not protected by the full panoply of rights that you had before you were sentenced. In fact, your rights are basically limited to those guaranteed by due process, which is very few. That means that hearsay evidence can be used against you, if it is "reliable." The government is not required to prove the probation violation beyond a reasonable doubt, in fact the level of proof required is much, much lower. This is partially what the holding in Aberdeen v. Regan was based on. Because the burden of proof is lower at a probation violation, just because the State could not convict you at a trial, does not mean that they could not have proven the case at a much lower burden of proof. Conversely, if you are convicted at trial, because the burden of proof is higher, the government can sometimes just rely on that conviction to prove the probation violation. You may even receive more jail time on the probation violation than you did on the underlying crime!

The upside to broad discretion if that Courts have the ability to craft rulings, so if you had a very sympathetic case, you could get a very sympathetic sentence. The downside is that there could be a massive disparity in misdemeanor probation violation sentences from jurisdiction to jurisdiction.

The same problem used to exist for felony offenses. The Legislature then passed the Sentencing Reform Act to address the issue. However, nothing similar was done to misdemeanors, presumably because they are considered lesser crimes where the maximum sentences are 90 days or 364 days, as opposed to five years or higher for felonies. However, 364 days can be a long time if you are in jail for it and some more uniformity and guidance in regard to misdemeanor and misdemeanor probation violations could be helpful.