Broward prosecutor: BSO’s probation plan jeopardizes safety, victims’ rights

In a challenge to judicial authority, the Broward Sheriff’s Office is again pushing a plan that would allow BSO, not judges or state law, to determine the reporting terms for county court defendants placed on probation.

BSO’s controversial idea, intended to cut probation costs, fizzled a year ago after it became known that defendants were being allowed to report less frequently than ordered by the court. In a Nov. 10 memo to all county court judges, however, BSO resurrected the idea, saying it “will become effective January 1” if they go along.

Once again, Broward County Court Judge Ginger Lerner-Wren is blowing the whistle. In an email to colleagues and others last month, she called BSO’s idea “legally unenforceable and contrary to the law.”

Lerner-Wren has a formidable ally this go-round.

In unusual pushback against the sheriff’s office, Broward Chief Assistant State Attorney Jeff Marcus wrote a two-page letter to Chief Judge Peter Weinstein objecting to BSO’s proposed new “Order Placing Defendant on Probation” and warning it would jeopardize both the legal rights of victims and the safety of the community.

“The State Attorney’s Office agrees with Judge Lerner-Wren’s position in this matter,” Marcus said.

Weinstein later told the Florida Bulldog he did not remember signing any order approving the change in probation procedures.

“The sheriff thought this was a done deal, but then the State Attorney’s Office said, ‘Not so fast,’ ” said Weinstein. “I’m open to more discussion. I had hope that they had worked this out, but if they haven’t, I’ll step in again. The prosecutors are raising some issues.”

BSO’s Department of Community Programs oversees probation. It would save money by reducing how often defendants convicted of misdemeanor offenses like driving under the influence must appear at a local probation office.

BSO released a Nov. 30 letter sent by David Scharf, the department’s executive director, to Weinstein thanking him for facilitating an earlier meeting with County Court Administrative Judge Sharon Zeller to discuss the court’s decision to “approve” the revised probation order. No administrative order approving the change was issued, however.

Zeller could not be reached for comment.

Probation Manager Pearlie Meisel’s memo says that under the new policy the probation division would determine the number of times a probationer must report using “a comprehensive validated risk assessment.” The assessment would then be forwarded to a judge for his or her signature.

“If for any reason you decide the selected supervision level is not agreeable, please signify your preference of supervision on the probation order before signing,” Meisel’s memo instructs the judges.

Scharf, Meisel’s boss, explained the practice known as “dosage probation” in an interview last year. He said it is rooted in “evidence-based decision making” involving the use of “objective risk assessment” criteria to determine whether an offender is high, medium or low risk.

In the past, BSO has used that formula to determine, without court input, how often someone on probation must physically report to a probation officer. When Lerner-Wren chanced to spot the unapproved practice in her court last year — BSO allowed a defendant ordered to appear before a probation officer once a month to show up every two months — she signed an order banning it in her courtroom.

The matter seemed to fade away when Zeller expressed concern about the legality of the practice in a memo to all criminal division judges last December.

But Meisel’s memo last month stirred the pot.

On Dec. 7, after hearing from Lerner-Wren, the State Attorney’s Office joined the fray.

Noting that probation is often imposed on defendants convicted of DUI, prosecutor Marcus told Judge Weinstein, “It is our position that Florida Statute 316.193(5) mandates that the defendant be placed on “monthly reporting probation … if a defendant is placed on a level of supervision which mandates that they report every other month as proposed in the new Order of Probation, this will be in violation of the statute.”

Marcus said prosecutors are concerned about “inadequate” levels of supervision. He said that offenders allowed to report every other month will not have “the same level of drug and alcohol testing that accompanies most of our probationary sentences” and that “the safety of the community could be jeopardized.”

“Of special concern are the recidivist DUI offenders who are sentenced routinely to the most intense levels of supervision,” Marcus wrote.

Marcus said, too, his office has other concerns about the delay caused by the “comprehensive risk assessment” because the level of supervision will not be announced in open court at the time of sentencing.

“As you are aware, all conditions of probation must be announced at the time of sentencing in order to be considered enforceable,” Marcus said.

“Finally, in many instances we have victims who are present in court at the time of sentencing. If the court sentences someone to a specific level of supervision based on a statement of the victim, and then a determination is made by a probation specialist after the fact, without the benefit of knowing about the victims’ wishes, we are concerned that the victim’s rights” under state law “may be jeopardized,” he said.

This story was originally published December 22, 2015 at 6:06 PM with the headline "Broward prosecutor: BSO’s probation plan jeopardizes safety, victims’ rights."