Misdemeanor Probation Bench Card

By James Rodatus

Over the past two years, Georgia has made several changes to its misdemeanor probation laws.  The Criminal Justice Reform Council has been involved in every aspect of Georgia’s criminal justice system since its inception in 2011.  In 2015 and 2016, the Council paid particular attention to Georgia’s misdemeanor probation laws.

Misdemeanor Probation Bench CardWith these recent legislative changes, the Judicial Council Standing Committee on Legislation sponsored a bench card, developed in partnership with the Criminal Justice Policy Program at Harvard Law School. 

The bench card features information on the constitutional issues that arise when a defendant fails to pay a legal fine obligation, stating that probationers cannot be imprisoned for failing to pay fines, fees, or restitution unless that failure to pay is willful.  Bearden v. Georgia 461 U.S. 660 (1983).  The bench card goes further and recommends sentencing alternatives such as waiving or reducing fines, or converting fines to community service.  There is also guidance on how judges should follow the new laws on inquiring into a defendant’s ability to pay and whether a fine, fee, or surcharge would result in significant financial hardship.  OCGA § 42-8-102(e).  Significant financial hardship is now defined in OCGA 42-8-102(e)(1)(C) as a reasonable probability that the defendant will be unable to satisfy his or her financial obligations for two or more consecutive months.  Defendants are presumed to have significant financial hardship when they: 1) Have a developmental disability under O.C.G.A. § 37-1-1; 2) are totally and permanently disabled under O.C.G.A. § 49-4-80; 3) earn less than 100% of the Federal Poverty Guidelines; 4) have been released from confinement within the past 12 months and was incarcerated for more than 30 days before release.

The bench card also provides information on recently passed laws on pay only probation and probation revocation.  Pay only probation fees may not exceed three months of probation, and a probation period must end when all fines, fees, and surcharges are paid in full.  This prevents probation providers from continuing to charge defendants after all their other probation requirements have been met.  If a probation officer wishes to revoke probation due to a probationer’s failure to pay, the probation officer must first schedule a hearing to determine if the failure to pay was willful.   If a probationer fails to report, the probation officer must meet certain requirements, such as filing an affidavit that shows the probationer has failed to report twice and checking local jails to ensure the probationer is not currently incarcerated.

This bench card was distributed to all Georgia judges who handle misdemeanor offenses with the goal that the card will assist those judges in making informed, lawful decisions on misdemeanor probation cases.  The card will be continuously updated as the laws and court rules on misdemeanor probation continue to change and evolve.

The work of the Criminal Justice Reform Council continued in 2017.  Several changes to Georgia’s felony probation laws were made in the 2017 legislative session, and another bench card detailing those changes has been published. 

Download the Misdemeanor Bench Card here.


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