PROBATION CRACKDOWN AN OVERREACTION

The arrest of Joseph Smith in the rape and murder of young Carlie Brucia -
which occurred while he was on probation for a previous crime - has focused
attention on Florida's law of probation. Spurred on by the media, our
representatives in Tallahassee have proposed several welcome changes in
that law, including greater supervision for all probationers and more drug
treatment programs for addicts like Smith.

But amid these good suggestions is one proposed change that would have
shockingly bad results. Legislation pending before the Florida Legislature
would establish a five-year mandatory minimum sentence for any probationer
who commits any crime, even a misdemeanor, while on probation. So if a
person on probation for a breaking into a car shoplifts a candy bar, he is
going away for at least five years - and we will be paying the bill.

A recent Associated Press story gives an inkling of how much this proposed
legislation might cost. In recent years California has cracked down on
parole violators - so much so that the state now houses about 40 percent of
all the imprisoned parole violators in the country. The additional cost of
imprisoning these violators is $1.1 billion annually, almost a quarter of
the total California spends on incarceration.

And what did California get for this massive expenditure? Its crime rate is
about the same as those of other populous states that imprison
substantially fewer parole violators.

Consider The Cost

In Florida there are thousands more people on probation than on parole. If
we begin sending probation violators to prison - each for five years
minimum - our prison budget will soar even more than California's did. Our
legislative leaders think they have a budget crisis now, but it is nothing
compared with what will happen if this mandatory minimum sentence is adopted.

There are only two limitations to the proposed legislation. One is that the
probationer has to have been convicted - at any time in his or her life -
of a "forcible felony." That term seems to require a serious crime, but as
defined by Florida law, "forcible felony" includes picking up a knife
during a domestic dispute, taking something through the open window of a
car, snatching the purse of a woman slumbering at a bus stop, or climbing
over a fence to steal a bicycle from a back yard.

The other limitation is that the crime for which the defendant is on
probation must be punishable by up to five years' imprisonment. But that is
true of every felony in Florida, including purchasing any amount of
marijuana, cockfighting, possessing a still and tampering with a car's
odometer.

What about the few cases where such a sentence is necessary? Florida's
judges already have the power to act in those instances, to give the
sentence this proposed statute would require. And you can bet that after
Carlie Brucia's rape and murder resulted in such vigorous criticism of the
judge who failed to revoke Joseph Smith's probation, all our judges will be
quick to use that power.

In short, the proposed five-year mandatory minimum sentence for probation
violators is both incredibly costly and totally unnecessary. Our
legislators would be foolish to include it in any reform of Florida's law
of probation.

Robert Batey is a professor of criminal law at Stetson University College
of Law.