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The problem with probation

Hundreds of violent offenders in Florida are still on probation even after repeatedly breaking the rules. The solution? Officials don't really have one.

Published June 13, 2004

[AP/Sarasota County Sheriff’s Office]
Carlie Brucia was walking home when she was abducted in Sarasota in February. The abduction was caught on a surveillance video as she walked behind a car wash.

More stories:
Eric Murray: 'I'll rip your head off'
Jacob Michael Petley: 'A risk to the community'
John G. Kelly: 'There was a time'
Riley: 'whereabouts unknown'
[Times photo: Bob Croslin]
Pinellas-Pasco Circuit Judge Phil J. Federico sits in his courtroom last week. He prides himself on being a conservative judge who doesn’t give a lot of second chances.
After violating his probation, Nicholas Whytsell, 21, got more probation.   photo

photo   Christopher M. Payton, 31, disappeared after being put on probation.

[Times photo: Dirk Shadd Feb. 6, 2004]
Joe Brucia, the father of 11-year-old Carlie Brucia, stands with Sarasota County sheriff’s officials, including Sheriff Bill Balkwill, right, during a news conference in Sarasota in February.
  Violation Report 9/18/2001
Page 1
Page 2

Page 3
This violation report from a 1999 drug case lists Joseph P. Smith’s past offenses, but does not explicitly say that he was charged with aggravated battery in case 93001112CF-A.

Warrant 3/6/03
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The Department of Corrections prepared this warrant in case a judge wanted Smith arrested.

Violation Report Note 12/30/2003
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Circuit Judge Harry M. Rapkin wrote “I need evidence that this was willful! Did he have the ability to pay.”

Violation Report 12/30/2003
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This probation violation report for Joseph P. Smith was written roughly one month before the abduction of Carlie Brucia in Sarasota.

Previous coverage of the Carlie Brucia case

When people learned about Joseph P. Smith's past, their sorrow turned to outrage.

The man charged with killing 11-year-old Carlie Brucia in Sarasota had a long criminal history that included hitting a woman in the face with a motorcycle helmet. He was on probation when Carlie was killed in February and could have been jailed earlier for using drugs or not paying court fees.

Smith's case is not unique.

Hundreds of violent offenders in Florida are still on probation even after repeatedly breaking the rules, a St. Petersburg Times analysis shows.

A Tampa sex offender violated 10 rules of his probation after serving time in prison for fondling a 7-year-old. He was never sent back to prison and is a fugitive.

A Pasco County man repeatedly convicted of battery and burglary went years without having his probation revoked despite this assessment from his probation officer: "If the subject is released on any type of probationary sanctions, it would be a risk to the community."

A Tampa man who assaulted his sister, hit his boss in the head with a hammer and went to prison four times still received probation when arrested for several other offenses.

The Times analysis of probation and inmate data from the Department of Corrections found:

A total of 426 people with at least one violent offense in their past were accused of violating their probation five or more times between July 2001 and January 2004.

Most of those 426 people did not receive prison time for their violations, in spite of criminal histories that included beating up girlfriends, mistreating children or hitting the police officers who arrested them.

Some offenders won second and third chances on probation, even though in previous cases judges had revoked their probation for breaking the rules.

Florida Attorney General Charlie Crist said if someone has committed a serious violent felony and later violates probation, "then there's probably some common sense logic to the notion that you've earned the right to go back to jail."

But Pinellas-Pasco Public Defender Bob Dillinger said probation often helps people turn their lives around. Probation can even make sense for some drug abusers with violence in their past, he said, because, "If you don't treat that problem, even if you put them in jail, you can't put them in jail for life. When he gets out, he's probably going to be worse."

Pinellas-Pasco Chief Assistant State Attorney Bruce Bartlett said it is inevitable that some probation violators will commit horrific crimes later.

"We all live in fear that whatever we do on a particular case could lead someone to harm further down the road," he said.

Despite those fears, Bartlett said, the probation system generally works. Joe Brucia doesn't agree.

"It's obvious after looking at some of these cases that there's clearly something wrong," Carlie's father said, "and no one will admit it."

* * *

The American system of probation stems from the vision of a Massachusetts boot maker named John Augustus, who wanted to rehabilitate people.

Augustus, a teetotaler, bailed a drunk out of jail in the 1840s. He got the man sober, kept him out of trouble, and repeated the process with other petty criminals.

"It was designed as a way of giving people who were not considered to be rotten through-and-through a second chance," said Lawrence M. Friedman, a Stanford Law School professor and legal historian.

Pinellas-Pasco Circuit Judge Phil J. Federico keeps a yellow sticky note on the bench in his courtroom in the Largo-area Criminal Justice Center. He reminds himself that state law says judges can impose probation when "the defendant is not likely again to engage in a criminal course of conduct."

Federico prides himself on being a conservative judge who doesn't give a lot of second chances. When a criminal comes back to court because he violated probation, the judge often rubs the top of his bald head in frustration and reads aloud the sticky note.

"As few times as possible," he said, "do I want to have a victim stand in my courtroom saying, "Why's this guy out on the street again?' and I say, "I'm sorry, sir or ma'am, but I don't have an answer.' "

That's the kind of question Michael Feighan had when he learned the history of Nicholas Whytsell, a 21-year-old multiple probation violator who burglarized his Port Richey home in April 2002.

"I'm amazed, given his drug charges and violent offenses, to hear that he's still walking around," said Feighan, 40.

Whytsell had pleaded guilty to battery for a scuffle with a man at a party in May 2001 and received 12 months of probation in January 2002. But before he was even sentenced, he threw a ceramic bowl at his girlfriend so forcefully that doctors had to pull shards out of her face, hand and arm and put 40 stitches in her hand.

Whytsell later went on to violate his probation several times and was charged with selling drugs. Like a lot of people with long criminal records, he was sentenced to spend some time in jail.

But all of that did not stop him from getting another shot at probation. He was sentenced to two years of probation in July 2003 for the theft at the Feighans' home and to four years of probation in August on a felony battery conviction for throwing the bowl at his girlfriend. That was a third-degree felony, punishable by up to five years in prison. He later absconded and was arrested last month for three violations of probation and failure to appear. He is in the Pasco County Jail.

* * *

When offenders are placed on probation, they are given rules to follow. These often include getting drug treatment, keeping a job, staying in touch with probation officers, making restitution to victims, paying court costs and not breaking the law.

But people break the rules all the time. Of 199,215 people who were supposed to be on DOC probation in April, about one in five had disappeared. Among the rest, nearly one in four had an active violation report.

Hillsborough Circuit Judge Dan Perry doesn't have a lot of patience for people who break the law while on probation. He is likely to strongly consider jail for them and for those who disregard court-ordered terms such as applying for jobs or taking anger management classes.

Perry said it would be impossible for him to jail everyone who violates the technical rules of probation, such as failing to pay court costs. "If I did that with my case load alone," he said, "I guarantee you I would have an extra 500 to 1,000 people in the county jail in a month because of not paying costs."

Jacob Michael Petley of Pasco County has broken the rules of probation several times, sometimes by committing new violent offenses. He went years without getting a prison sentence.

Petley, who is 23 and has been diagnosed with mental health problems, including hearing hallucinations, was first arrested at age 12. His record as an adult includes trying to "karate kick" an elderly woman; burglarizing a house and punching the elderly homeowner; stealing from U-Haul storage units; criminal mischief; carrying a concealed weapon; instigating a bar fight; and many other crimes.

He has broken his probation nearly every way possible: failing drug tests, blowing off appointments with his probation officers, destroying a GPS monitoring device, getting arrested and re-arrested.

He spent some time in jail but had never been sent to prison. A judge once gave him a five-year prison sentence but suspended it. Three months later, he was arrested on a burglary charge. Earlier this year, he was briefly on the run before being arrested last month. And just this month, a judge sentenced him to nine years in prison.

For many critics of the justice system, a case like Petley's or Joseph Smith's suggests an obvious solution: Revoke the probation of those who violate the rules.

But Florida doesn't have enough prison cells to lock up everyone who breaks the rules. The prison system in April held 80,548 inmates - more than enough to fill Raymond James Stadium. But more than twice that many people were on state probation. Several legal experts said people with violent histories and past probation violations should get the fewest extra chances.

But Department of Corrections Secretary James Crosby said focusing on the worst violators is difficult. After Joseph Smith's arrest in February, he said, the staff's research indicated "there's at least six or seven thousand people that had a record similar to his."

Crosby said there is no concrete research showing those types of people on probation will commit more violent offenses. There is no way to "pre-identify who's the next person who's going to harm a child," he said.

"Trust me, we have been looking for a profile. I have ordered a profile but nobody's been able to deliver it."

This is part of the reason judges, defense attorneys and prosecutors often focus on rehabilitating criminals, by giving them drug treatment, for example. It's not just that they're showing compassion. They're also trying to attack root causes of crime.

"We try to change that pattern of conduct so they can shake the demons and lead a law-abiding life," said Hillsborough State Attorney Mark Ober, speaking specifically about prosecuting drug addicts. But if addicts who are supposed to be getting drug treatment violate their probation, "Then they certainly risk going to prison or jail.'

* * *

Christopher M. Payton took that risk, several times.

Payton pleaded no contest to misdemeanor battery in 1994 in Broward County, after police said he slugged his pregnant girlfriend, who had blood streaming down her face. He also pleaded no contest to domestic violence battery in 2000 in Lake County after hitting a different girlfriend, swinging her around by her hair and smashing her windshield with his fist. He was arrested again for domestic battery on that same girlfriend in Clearwater in 2000, but in that case charges were dropped.

"He was an abuser. . . . He definitely had some problems," said the 42-year-old victim of the latter two cases, whose name is being withheld because she fears being found by Payton.

In spite of his domestic violence cases, plus a felony conviction for driving with a suspended license and other misdemeanors, Payton's record did not qualify him for a minimum prison sentence under state sentencing guidelines.

Payton was put on two years' probation through drug court, a program designed to help addicts get treatment and stop committing crimes.

He did not do well. Payton violated his probation by twice testing positive for drug use in 2002; by getting cited for having an open container of alcohol in June 2003; and by failing to report to his probation officer in July 2003, court records show. His probation was extended. After he failed to make a required probation report this January, a warrant was issued for his arrest. Payton, who is 31, has not been found. "I can't even believe that they just let him go," his ex-girlfriend said. Her solution: "Put him in jail, because I think that's why he continues to do it. . . . He's been getting away with it."

* * *

Although many people go straight to prison after violating probation, there also are several ways people avoid it. Judges sometimes give extra chances to addicts, hoping to prod them into treatment while they're on probation. Widespread plea bargaining also has an effect because offenders sometimes plead guilty to reduced charges, and criminal backgrounds filled with misdemeanors look less threatening than records covered with felonies.

Judges also sometimes are not given complete information about the criminals they are sentencing, even though many court records are computerized. A case in point: Joseph P. Smith.

After Smith's arrest in connection with the death of Carlie Brucia, who was abducted as she walked home from a friend's house in February, a storm of controversy centered on the judge who did not send Smith back to jail after he failed to pay court fees. The state Department of Corrections, which oversees most probationers, quickly pointed out that it had asked Sarasota Circuit Judge Harry Rapkin to send Smith back to jail.

But the violation reports prepared by the DOC's probation officers offer little to suggest that they saw Smith as a dangerous person or someone who had been violent in the past.

The DOC's Dec. 30, 2003, violation report about Smith noted that he had failed to pay $170 of his $411 in court costs, but it did not list Smith's arrest history or attempt to assess whether he was a violent person. It also did not mention that Smith had performed badly on probation before, even earning a prison sentence because he had violated probation after a 2000 drug case.

In fact, this DOC report did not explicitly recommend jail for Smith any more than Rapkin did. It recommended that Smith "remain on supervision," rather than return to court to have his probation revoked.

Asked about this apparent contradiction, DOC Regional Director Joe Papy said the DOC also had separately prepared a warrant to present to the judge for Smith's arrest, as it does routinely in these cases. He acknowledged the probation officer made "a clerical error" by not checking a box on the form requesting for Smith to be returned for a hearing.

Probation officers also prepared a violation report in an earlier drug case, but it too was incomplete. One line on this 2001 report reads "PRINCIPAL/SEE PROGRESS DOCKET ENTRY" and lists a case number, along with the phrase "ADJUDICATION WITHHELD." That's the only hint that Smith in 1993 had pleaded no contest to aggravated battery for smashing his motorcycle helmet into a woman's face. The report did not mention that just two months before the report was written, a man had sought an injunction against Smith, saying that he "unexpectedly punched me in the face, breaking my nose and possibly tearing my left retina."

Papy said judges always can ask probation officers for additional information. And since the Joseph Smith case came to light, he said, probation officers are under instructions to write more detailed reports. They also are including state and national rap sheets along with their reports.

DOC secretary Crosby said he thinks probation officers did a good job in Smith's case, but acknowledged that in general, "there should have been more information in the past given to the judges." He said probation officers have been reminded "to tell everything they know about the person in the report."

A probation reform bill that would have required more comprehensive summaries passed the Florida Senate this year but failed to win approval in the House in the hectic final days of the legislative session. The proposal also would have required the DOC to prepare a "risk assessment" system to calculate which offenders on probation were most likely to commit new crimes.

The original bill also would have imposed five-year prison terms on certain probation violators with violent histories, but that provision was removed in the final version. Sen. Victor Crist, R-Tampa, said he thinks most legislators support changing the system and said he or another senator will make sure it comes to a debate again next year.

But no probation system will be perfect, said Ober, the Hillsborough state attorney.

"We're dealing with humans making those types of predictions about someone's future, and I would hate to be the person making any type of prediction about someone's conduct for tomorrow because it is virtually impossible," he said. "We literally take chances every day on people that we put on supervision."

- Times Staff writer Richard Raeke can be reached at 727 869-6236 or Dong-Phuong Nguyen can be reached at (813) 226-3403 or and Curtis Krueger can be reached at (727) 893-8232 or Times computer-assisted reporting specialist Constance Humburg contributed to this report.


The St. Petersburg Times received a database from the state Department of Corrections listing all people who have been accused of violating their probation from July 2001 to January 2004.

Times computer-assisted reporting specialist Constance Humburg then matched this information to another DOC database to determine which of these people had committed a violent offense in the past.

The data showed:

A total of 70,762 people on probation during this period were accused of violating probation at least once. In some cases, the violations were confirmed; in other cases, they were not.

A total of 1,875 of these people were accused of five or more violations of their probation.

Of these 1,875 people, 426 previously had been convicted of at least one violent offense on a list of offenses chosen by Times reporters and editors.

Defendants considered violent under the Times analysis committed at least two counts of battery on a law enforcement officer or at least one count of the following offenses: robbery, home invasion robbery, aggravated assault, assault, sexual battery, aggravated battery, battery, lewd and lascivious behavior, false imprisonment, shooting missiles into a dwelling or vehicle, aggravated child abuse, carjacking, murder or manslaughter-culpable negligence.

The Times also screened for a number of other violent offenses that did not turn up among the multiple probation violators, including kidnapping, attempted murder and aggravated stalking.

By the numbers

199,215: Number of people on probation in April according to Florida Department of Corrections

43,823: Number of those people who had run away or failed to contact probation officers

36,123: Of people who had not disappeared, number with pending probation violations

16.2 percent: Portion of people serving probation in April who were doing so for commiting violent offenses

- Source: Department of Corrections

[Last modified June 12, 2004, 23:37:23]

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