You may have been litigating your criminal case for months, or you may have just been arrested. In either scenario, you face the decision of whether to plead guilty or go to trial. While every crime carries the potential for prison, or jail time, the reality is there are multitudes of sentencing options that will not require you to step into a jail cell.
Judges have wide latitude on sentencing and can be very creative in how they choose to sentence a defendant. At the same time, many felonies carry mandatory minimum sentences of incarceration and other mandatory penalties. In such a scenario, your criminal defense attorney may try to negotiate a plea to a less serious crime that does not carry mandatory jail time, but whether this depends on the specific facts of each case.
Most sentences that require a criminal defendant to fulfill certain conditions of release have what’s called “jail alternatives” if the conditions are violated. These alternatives exist in case any conditions of the sentence are violated. Usually, the judge specifies the consequences of violating these conditions at the time of sentencing.
Some classes of crimes have the possibility of a conditional discharge. This means that you will be released at sentencing if you were in jail on bail or remain out if you weren’t, on the understanding that you will follow the judge’s specific conditions of release for a specified period of time.
A condition of a conditional discharge could be not to be re-arrested for a year, for example. If this was your condition and you were arrested within that time, the court will consider you having violated the terms of your conditional discharge. A hearing is usually held to determine whether the condition was violated, sometimes referred to as a “V.O.C.D.” hearing, or a “violation of a conditional discharge.” Most of the time, the judge explains the consequences failing to fulfill the conditions of your conditional discharge. This could include a “jail alternative,” the completion of certain programs, abiding by certain restrictions (such as installing an ignition interlock device in your car), or paying restitution.
For a misdemeanor or violation, the period of a conditional discharge is one year.
For a felony, the period of a conditional discharge is three years.
With the introduction of the idea that prison is not the only way to achieve “rehabilitation,” New York City courts are increasing their use of alternatives to incarceration. In New York, your criminal defense attorney may refer to something called a “re-pleader.” This is a complicated plea that is usually contingent on the defendant fulfilling certain conditions. Generally, the defendant will plead guilty to a specific crime – this plea of guilty is made on the understanding that if he or she successfully carries out certain terms, he or she is permitted to “re-plead” to a less serious crime (such as a misdemeanor or a violation), a conditional discharge, or both. In some cases, the government may even dismiss the case if certain conditions are fulfilled.
“Re-pleaders” are most commonly implemented for people in need of substance abuse or mental health treatment. The hope from the government’s point of view is that if they treat the underlying issues that may have caused the person to stray from the law, he or she may not re-offend. It could also, however, only be contingent on the defendant leading a law-abiding life for a period of time.
For example, a criminal defendant may be offered a dismissal, conditional discharge, or a plea to a less serious crime if they agree to plead guilty to a felony drug possession crime and successfully complete a substance abuse program. The defendant usually must go to court for “compliance” dates so that the court can monitor his or her progress. Usually, the court will want a neutral third party’s assessment of the defendant’s progress; in this scenario, they may want a report from the substance abuse program. The treatment time may be set before the defendant is sentenced, or it could be open ended and depend on the individual’s specific progress and needs. If the defendant successfully completes the program, he or she will be able to go back to court to withdraw their previously entered plea and be “re-sentenced” to the promised sentence and charge. If unsuccessful, though, the defendant faces the jail alternative that is usually specified at the original sentencing.
Keeping in mind what happens if you violate the terms of the plea will not only remind you to take these conditions seriously, but it will also be helpful to consider when thinking about whether you think that you realistically can or are willing to fulfill these conditions. If the chances are bleak, you may be setting yourself up for failure by taking such a plea.
Remember that such a plea must be offered by the government and accepted by the judge hearing your case. It is not a right, and has not even been fully embraced by all U.S. courts. Whether you will even be offered such a plea depends on where your charges were brought, your criminal history, and the current allegations against you. If you do have a criminal history, the government will consider your previous convictions, their recentness, and your history of making court appearances or fulfilling other past obligations.