Sunday, March 9, 2014

County Prosecutors Often Illegally Ban Alcohol Consumption As a Condition of Probation

By Paul Ogden

The overcrowding of our prisons and jails is a common problem in the United States, including here in Indianapolis. Just a few years ago, county officials entered into a plan to reduce overcrowding in the Marion County jails, a plan that in 2007 alone cost $5 million. For most communities, the solution to the overcrowding problem is to build more facilities or reduce punishment for certain offenses, particularly drug offenses. During the last legislative session, however, the Indiana General Assembly went the other direction, replacing the one-day-good-time credit for every day served with a requirement that those convicted serve 75% of their sentences.

While there is undoubtedly a need to examine sentencing laws, in particularly as to non-violent offenses, there exists already a law on the books which, if enforced, would help reduce the needless incarceration of offenders.

IC 35-38-2-2.3 provides the conditions of probation than can be imposed on an offender. That statute lists 23 different allowable probation conditions, including the requirement that a person “undergo a laboratory chemical test or series of chemical tests…to detect and confirm the presence of a controlled substance….” Another one is that an offender can be required to “[s]atisfy other conditions reasonably related to the person’s rehabilitation.”
Unlike cocaine, meth, heroin, and prescription drugs, alcohol is not a controlled substance. Indiana courts have said that an alcohol ban as a condition of probation can be upheld only if it is reasonably related to the person’s rehabilitation. (For example, see Carswell v. State, 721 NE 2d 1255, 1264-1265 (Ind. 1999))

For example, a person convicted of drunk driving can probably be required to abstain from using alcohol in a probation agreement. But requiring a shoplifter to not drink a drop of alcohol for one year would not be “reasonably related to the person’s rehabilitation.”

Despite clear statutory guidance and appellate decisions to the contrary, county prosecutors across the state continue to include as a standard provision in probation agreements bans on alcohol use regardless of the underlying offense. Trial judges rarely strike these provisions after the parties sign off on the probation agreement.

According to a 2010 Gallup poll, 67% of Americans consume alcohol. It is a safe guess that 2/3 of those on probation also consume alcohol. The reality though is that alcohol leaves the system fairly quickly and offenders who drink do not usually get caught in chemical tests. But probation officers will often ask about an offender’s compliance with the conditions of probation and occasionally offenders are truthful about alcohol use. That offender who tells the probation officer of that beer he had while sitting at home watching the Colts game could well end up serving the rest of his probation, which could be a year or longer, behind bars.

How many people are incarcerated for having violated an alcohol probation condition that legally should not have been part of the agreement? Without examining each and every file in which a person was sentenced to probation, it would be hard to come up with those statistics. However, given the expense of keeping people behind bars and the overcrowding of our jails and prisons, incarcerating even one offender for violating an illegal ban on alcohol use contained in a probation agreement, is one too many.

 About the AuthorPaul K. Ogden has worked in every branch of state government, including as a Deputy Attorney General, a clerk to a judge on the Indiana Court of Appeals and on the staff of the Indiana State Senate. He has been an attorney since 1987 and handles both civil and criminal cases. In addition to his having taught political science at IUPUI and the University of Indianapolis, Ogden publishes Ogden on Politics, a blog that discusses national, state and local politics.          

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