Revoking Probation Sentences and How the Fifth Amendment Applies

Revoking Probation Sentences and How the Fifth Amendment Applies

In 2002, a court gave Kyle Thomason ten years probation for a charge of intoxication manslaughter. Thomason repeatedly failed to complete his probationary requirements, so in June of this year, the court revoked his probation and ordered him to serve seven years in prison. Most people understand the judge’s choice to revoke his probation, but in many cases, a defendant’s circumstances are not always black and white. The public interest in Thomason’s situation has prompted curiosity about the standard judges use to determine when to revoke a defendant’s probation sentence and how the Fifth Amendment against self-incrimination applies.

On Memorial Day 2002, 21-year-old Kyle Thomason, of Arlington Texas, was charged with intoxication manslaughter after his boat collided with an oncoming boat and killed a 37-year-old passenger. Despite Thomason’s history of alcohol problems, the court gave him a ten year conditional probationary sentence.

After failing alcohol tests and failing to complete a required inpatient state substance abuse program, in June of this year, a judge revoked Thomason’s probation and sentenced him to seven years in prison.

Federal Law Probation Revocation Standards

Under federal law, a court may revoke a defendant’s probation, or supervised release, if it finds by a “preponderance of evidence” that the defendant whether willingly or accidentally violated a condition of his or her probation.

The phrase preponderance of evidence simply means that the government is only required to present to the judge sufficient evidence to show the probationer’s conduct violated his or her probation conditions.

Failing to pass an alcohol test when strictly forbidden to drink, failing to complete required alcohol treatment programs, possession of a controlled substance or firearm, or refusal to comply with drug testing are all grounds courts across the country have used as sufficient evidence to reverse a defendant’s probation sentence.

Texas State Law Probation Revocation Standards

In Texas, courts follow the preponderance of evidence standard as well when determining whether to revoke a criminal defendant’s probation or “community supervision” under state law.

Earlier this year, a Texas Court of Appeals revoked a woman’s probation after determining she violated the conditions of her probation by failing to timely notify her probation officer of her address change, failing to complete anger management classes and failing to pay court fees.

The court ordered her to complete a two year prison sentence despite her inability to pay and her lack of transportation.

Other reasons Texas courts have revoked a defendant’s community supervision sentence include unauthorized communication with the victim of the crime, failing to pay court restitution, and marijuana possession.

Whether federal law or Texas law applies, no set list of probation revocation violations exist. The court seemingly looks at each case individually when determining whether the preponderance of evidence standard is met.

Use of the Fifth Amendment Privilege

However, situations get a little muddy when the Fifth Amendment is tied in.

The Fifth Amendment is a U.S. constitutional amendment that outlines several fundamental liberties criminal defendants are entitled to including the right to be free from self-incrimination. In particular, the Fifth Amendment states, “no person…shall be compelled in any criminal case to be a witness against himself.”

The same parallel provision is outlined in the Texas constitution as well. The provision states, “in all criminal prosecutions the accused…shall not be compelled to give evidence against himself.”

Both sections essentially mean the government cannot force criminal defendants to answer any questions in any context that could potentially implicate them in future criminal proceedings. However, many believe defendants should be allowed to assert the Fifth Amendment privilege against self-incrimination if they are asked questions that could potentially lead a judge to revoke their probation.

Courts nationwide disagree with this argument and state as a general rule defendants cannot assert the privilege in contexts that relate to their probation. However, courts conclude that defendants can assert the Fifth in a probationary context if they are asked questions relating to an offense independent of the charges they are serving probation for.

In one recent situation, a Texas court determined a criminal defendant was entitled to assert the privilege to questions he was asked in the context of his probation. The defendant was on probation for pleading guilty to one count of injury to a child. He was given a polygraph exam as a condition of his probation and asked several questions including:

  • Have you had sexual contact with any persons younger than 17?
  • Since you have been on probation, have you tried to isolate a child for sexual purposes?
  • Since you have been on probation, have you intentionally committed any sexual crimes?

The defendant refused to answer the questions and was ordered to go to jail because he violated this condition of his probation. The defendant appealed citing Fifth Amendment privilege.

The court agreed and concluded that the defendant was allowed to assert privilege to these specific questions and legally refrain from answering them because they specifically related to independent crimes rather than to his community supervision.