PROBATION OR JAIL TIME: DEFENSE LAWYERS DEBATE WHICH IS THE BETTER DEAL

Lester Clearance Warner and Trimain Ramon Sims have a lot in common.
Both are African-American men in their late teens. Both were recently
arrested and charged with felony possession of a small amount of crack
cocaine. And both pleaded guilty to the charges.

But while both young men are first-time felony offenders, their cases
had different outcomes.

Warner, who had a court-appointed attorney, was sentenced to jail and
led away in chains. Sims, who was represented by a hired lawyer, was
given probation and allowed to walk out the courtroom door.

The lawyers in both cases say their clients got exactly what they
wanted, and that only time will tell which of the two men got the
better deal.

It is a scenario that repeats itself thousands of times each year in
the 22 criminal district courtrooms in Harris County.

A Chronicle study showed that in cases involving first-offense
possession of less than one gram of cocaine, 21 percent of defendants
with hired lawyers were sentenced to serve time, compared with 53
percent of defendants with appointed counsel.

The study covered 30,000 cases, including 1,800 first-offense cocaine
charges, filed in 1996 -- the most recent year for which nearly all
cases have reached their final outcomes.

Kent Schaffer, president of the Texas Trial Lawyers Association, said
he found the numbers "incredible" because the common wisdom is that
first-time offenders rarely go to jail.

"I have been telling people for years that first-timers almost always
receive probation or deferred adjudication," Schaffer said. "That is
what probation was designed for."

Possession of cocaine is a felony under Texas law, but first-time
defendants who plead guilty to possessing less than a gram can be
sentenced as if the charge were a misdemeanor.

The maximum misdemeanor-level punishment is one year in county jail.
As a felony, first offense cocaine possession is punishable by 180
days to two years in state prison.

Judges and lawyers say that state law and sentencing practices often
make a jail sentence more attractive than probation or deferred
adjudication (a form of probation in which the charge is removed from
the person's record if probation terms are met).

Barry L. Jones, the court-appointed attorney for Lester Clearance
Warner, said that first-time offenders normally get a choice of county
jail time or probation.

Given the current options under the law, Jones said, many defendants
- -- like Warner -- choose to do their jail time upfront rather than
face several years on probation.

Warner was sentenced to 120 days in the Harris County Jail, which can
be reduced as much as one-third for good behavior.

"Deferred adjudication can be a trap for the defendant," said Jones.
If a defendant violates the terms of deferred adjudication, he can be
hit with the maximum sentence, and there is no appeal.

"Some defendants are better off taking jail time and getting
everything behind them," Jones said.

Andrew D. Martin, the hired attorney for Trimain Ramon Sims, said his
client also got a choice between jail time and deferred
adjudication.

Because Sims works three jobs and had no prior record, Martin said,
prosecutors were willing to work a deal for probation that was
acceptable to both sides.

Under the plea bargain, if his client successfully completes five
years of probation, the criminal charge will be erased from his record.

"My client did not want to go to jail," Martin said. "He felt he could
do the five years probation."

So while it appears Sims got the better deal because he was allowed to
walk away from court a free man, he faces the full five years
imprisonment should he violate his probation. He also must undergo a
drug evaluation and complete a drug treatment program if it is deemed
necessary.

Warner, on the other hand, can be released from jail after serving as
little as three months, and when he is, his case will be over for good.

"It will be over sooner rather than having to deal with the full range
of punishment several years down the line," Jones said.

Criminal defense attorney Dan Gerson said he doesn't buy the argument
that "these defendants are getting what they want" when pleading
guilty and taking jail time on a first offense.

"My experience is that first-time offenders do not want to go to
jail," Gerson said.

The only reason so many defendants choose jail over probation is that
they have learned that it is highly unlikely that they will be able to
complete a probation without getting revoked, Gerson said.

Probation was designed to supervise and rehabilitate offenders, Gerson
said. But judges are now too quick to revoke probation for minor
violations, such as being late or missing an appointment with a
probation officer, he said.

"It has become sort of a game of `gotcha' that only the most
super-straight, college-educated, well-organized defendants can
handle," Gerson said.

Statistics for the Harris County courts appear to support that
conclusion.

Prosecutors brought more than 8,300 motions to revoke probation last
year, and judges granted the motions in almost 70 percent of the cases.

The Chronicle's examination of 1996 court statistics did not break
down revocations according to whether defendants were represented by
hired or appointed counsel.

It did show that defendants with court-appointed lawyers were twice as
likely to have been sentenced at the outset to jail rather than
probation for first-offense cocaine possession.

It's a matter of conjecture whether that really was their choice, or
merely the inevitable result of a system that makes jail the most
tolerable among unappealing options.

Anthony Osso, an attorney whose case file includes private clients as
well as court appointments, said defendants represented by appointed
attorneys often are different than those who can afford to hire a
lawyer to defend them. That in itself, he said, could explain why more
indigent defendants are sentenced to jail.

Defendants with money tend to be from better homes, have a better
support system of family and friends, and are more concerned about
staying out of jail and protecting their futures, Osso said.

Not only are they better candidates for probation, Osso said, they are
much less likely to be willing to accept a jail sentence for a first
criminal offense.

"The same rules just do not apply to the typical indigent criminal
defendant," Osso said. "He is really not concerned about his future
and he is not concerned about his job prospects."

The decision to take jail time is often made easier by the fact that
the client cannot make bond and is already sitting in jail awaiting
trial.

"It is a lot easier to stay in jail than it is to give up your freedom
and go back to jail," Osso said.

The bond for a first-time small drug charge is typically $2,000, yet
many defendants cannot even come up with the 10 percent that it takes
to make bond.

"You would be amazed how many people sit in jail, sometimes for
months, because they cannot get their hands on $200," Osso said.

Among the 22 felony judges in Harris County, Denise Collins handed
time behind bars to the highest percentage of first-time cocaine
offenders -- half of the defendants with hired counsel and more than
80 percent of those with appointed attorneys.

At the other end of the spectrum, Judge George H. Godwin sentenced 32
percent of such defendants to jail when represented by appointed
attorneys, and only 5 percent of those represented by hired lawyers.

Godwin, the county's chief criminal judge, said he was "mildly
surprised" that the Chronicle study showed such disparities between
punishments handed defendants represented by appointed and hired attorneys.

But he said the effect of money on the outcome of a criminal case is
minimal.

"There is a lot of art in the system," Godwin said. "But it is still
the facts, or the evidence, in a case that is the controlling factor."

He still believes the Harris County system provides defendants with
quality representation.

But the Chronicle's study troubles Mark Mauer, assistant director of
the Sentencing Project, a Washington, D.C.-based group that tracks
criminal justice issues and examines alternatives to
incarceration.

He said the judges in Harris County are failing both the first-time
offenders and taxpayers by ignoring most treatment options and forcing
defendants into jail.

"It is a pretty sad commentary that defendants are finding jail to be
their best option," Mauer said.

Judges in many parts of the country have found that putting low-level
drug offenders into mandatory treatment programs helps them deal with
their addiction, which ultimately reduces both drug abuse and
drug-related crime.

"You can punish someone by putting them in jail for three to six
months, but if you haven't dealt with the underlying addiction you are
just setting yourselves up for failure," Mauer said. "That person will
be back in the system within six months after they are released."

Many jurisdictions place several steps between probation and prison,
Mauer said.

Violators are often placed on electronic house arrest, or given more
restrictive probation terms, including greater supervision and
stepped-up drug treatment counseling sessions, Mauer said. Offenders
also may be sent to jail on weekends, he said.

Some states have made it almost impossible for defendants to be jailed
at all on low-level cocaine possession charges.

Arizona law now prohibits first- and second-time offenders from being
sentenced to jail. Instead, they are put on probation and drug treatment.

Penalties for large-scale traffickers and violent drug offenders were
increased as part of the new program.

A report issued earlier this year by the Arizona Supreme Court
estimated that taxpayers saved more than $2.5 million in the first
year of the program's operation. In addition, more than three-quarters
of probationers have tested free of drugs, and have made payments
toward the cost of their treatment.

Harris County District Judge Jan Krocker said that the jail sentences
common in Houston's courts may have the opposite of the intended effect.

The public perception is that judges are being tough on crime when
they sentence someone to jail, Krocker said. But it is often tougher,
and more effective, to make a defendant face a choice between
rehabilitation and a long prison term rather than sending him to
county jail for a short stay.

In 1996, half the first-time cocaine offenders who appeared before
Krocker got probation, 38 percent were incarcerated and 12 percent
were acquitted or had cases dismissed.

First-time offenders in her court are almost always offered probation,
which she is usually inclined to grant, she said. But defendants in
jail all know about the option to take county time, and they come to
court demanding it.

"I am often disappointed because I will see a defendant that really
should get probation and drug treatment." Krocker said. "But they
insist on taking what they see as the easy way out."