Make one false move . . .
Take a ride on Rhode Island's revocation railroad
by Jody Ericson
Arthur Greene was a free man -- free of a heroin addiction that had
plagued him for more than two decades and free of the state prison whose
corridors he'd roamed, on and off, for most of his life. Paroled in May 1996
into the MAP Alcohol & Drug Rehabilitative Services residential program in
Providence, Greene, a tall, broad-shouldered man with a booming voice, says his
life was finally on track.
A former drug hustler and chronic user, he was lecturing teens now as part of
his training at MAP. He was reconnecting with his wife and two kids and
learning about himself. "I'm stubborn. I had control issues. I didn't trust no
one," he says. "I turned my life over to MAP, and they got into my head and
turned all that around."
But seven months after Greene arrived at MAP, the key to his freedom was
abruptly revoked when his seven-year-old grand-niece accused him of molesting
her over the previous Thanksgiving weekend. Without a jury trial, or even a
judge who was convinced beyond a reasonable doubt that Greene was guilty of the
charge, the 47-year-old ex-convict was sentenced to 12 years in prison for
violating his probation.
To his family in Newport and even the staff at MAP, the accusation and
resulting conviction seemed almost Kafka-esque. "I was his counselor, and this
just didn't sit right -- that he'd work so hard to blow it like that," says
David Jennings, MAP's program supervisor. "Sexual abuse also didn't match the
psycho-socials we'd done on Arthur. It didn't fit into anything we had on him."
As Greene's sister, Debora, points out, all of Greene's other crimes were
drug-related. She suspects her brother was the victim of a long-simmering
But according to Rhode Island law, the circumstances of the allegation didn't
matter as much as Debora Greene and the others thought they would. When Arthur
Greene had been released from the Adult Correctional Institutions (ACI) in
Cranston last May, he'd entered into an agreement with the state of Rhode
Island known as probation. Busted the year before on drug charges, Greene had
received 15 years in prison, 12 of those suspended. Once out of jail, he knew
that if he made one wrong move, the state could send him back to prison for
those 12 remaining years on merely the suspicion that he'd violated his
Indeed, for alleged probation violators across the nation, the usual
procedures and protections of the accused don't apply. At their
probation-violation hearings, all the testimony can be secondhand (i.e., the
cop who took the report), and unconstitutionally seized evidence is allowed.
What's more, a judge must only be "reasonably" satisfied that a probation has
been violated in order to convict. All that could take is the alleged victim's
Those advocating for reform say the due-process rights of those on probation
are trampled on as a result, but law-enforcement officials argue that criminals
such as Arthur Greene don't deserve an actual trial or a third chance -- their
probation is a privilege, not a right. More important, society must be
protected from people who have already proven themselves to be dangerous, so
justice must be swift. A jury trial takes too long, the officials say.
But although the arguments on both sides of the issue are compelling, there is
no doubt that Rhode Island's probation-revocation policy, rooted in state and
case law, is open to abuse, allowing the Attorney General's office (whose
spokesperson did not respond to a request for an interview about the Greene
case or probation violations in general) to short-cut its responsibilities to
fully investigate and present the facts of a case. While this could result in
swift action against known criminals, it also gives state officials the power
to jail those whose guilt may be questionable -- or even those who are probably
"A prosecutor will very often go forward with a charge that is bogus because
he knows [probation] violation is an easy mechanism for incarceration," says
deputy public defender Barbara Hurst. "It sometimes becomes a vehicle for a
defendant to end up with a long sentence after a mini, relaxed hearing."
Indeed, after meeting the lower burden of proof at the probation-violation
hearing, state prosecutors have no obligation to proceed with the actual
criminal trial. The defendant, after all, is already where the state wants him
or her, back behind bars.
State prosecutors also can use the probation-violation hearings as a form of
harassment or coercion, says Hurst. By pointing out how easy it'll be to
convict, the prosecutors often pressure defendants to agree to a plea -- and to
possibly admit to something they didn't do. "The whole procedure encourages
defendants to plead to felonies because of the expectations that they'll lose,"
But what many violators don't realize is that a plea with a suspended sentence
will have the reverse effect of what they intended -- it will all but ensure a
ticket back to prison. If they commit even a minor infraction such as
trespassing, the alleged violators are in for a ride on what is known among
local inmates as "Rhode Island's revocation railroad."
Rhode Island's revocation railroad
Peter LeBlanc was convicted of violating his probation two years ago on drug
charges. His original conviction stems from a kidnapping and an aiding in an
armed robbery charge from 1987. For the last two years, LeBlanc has been
researching the state's revocation policies, trying to get himself and other
prisoners out of the probation-violation maze.
During a telephone interview, the inmate comes off as a fast talker, or maybe
just a slick attorney -- someone who finesses the truth when it serves him.
LeBlanc, for instance, maintains that he was wrongly convicted of possessing
drugs in 1995 -- even though the cops say they caught him sitting on a toilet
and flushing down plastic bags filled with cocaine when they busted in on him.
(LeBlanc says he was in the Pawtucket apartment to sell someone a car.)
Still, with a rap sheet dating back into the distant past, LeBlanc certainly
has had time to figure out the judicial system. Describing himself as a
"certified legal researcher and a prison law clerk," he has even served as his
own legal counsel (much to the Superior Court's chagrin, judging from the
thickness of his file). As a result, LeBlanc has become a kind of unofficial
spokesman for local prisoners on the subject of probation violations. Citing
case numbers and rules of criminal procedure, he can summarize, better than
anyone else in the state probably, what Rhode Island's revocation rules really
"Once people take a ride on the Rhode Island revocation railroad, their
suspended sentences just escalate," says LeBlanc. "A lot of these cases evolve
from basically nothing, but because the signatures keep going down on the
nolo [no-contest] pleas, they keep building and building. Then these
guys look like habitual offenders, menaces to society. Meanwhile, I'd say 80
percent of the people in here [at the ACI] are probation violators."
Because of this high risk of reincarceration, Andrew Horwitz, head of the
criminal-defense clinic at Roger Williams University School of Law, says he
urges all of his clients to "think very carefully" before taking probation or a
"There's such a fine line between that and jail, particularly for those
clients of mine who are involved in domestic disputes," says Horwitz. "I'll
often say that they're handing the key to the jailhouse door to their domestic
partner if they remain in the relationship, because the next allegation of
abuse will almost certainly result in prison time."
Indeed, the threshold of culpability is so low at probation-violation
hearings, defendants can be violated on something other than their
alleged crime. Working in New York City in the early '90s, Horwitz had a client
who was arrested on a drug offense while on probation. At the hearing, the
prosecutor decided to not even try the man on the "new, entirely unproven
criminal offense," says Horwitz, but on the fact that the defendant had failed
a drug test and had missed some counseling sessions.
After the judge concurred that the man's probation had indeed been violated as
a result, Horwitz's client committed suicide. "I tried to say, `If he's
acquitted of the criminal charges, then let's see if he deserves a few more
years for dirty urines,' " says Horwitz. "But the use of a non-issue was
In a similar case in 1991, Rhode Island Superior Court Judge Henry Gemma
convicted Richard Wiggs of violating his probation not for his original charge
of breaking and entering, but for trespassing and relieving himself near some
garbage cans at the scene of the crime. "There is not sufficient evidence, it's
true, to prove even beyond a reasonable satisfaction standard that Mr. Wiggs
was present at the time the apartment was broken into . . . by [Wiggs's
friends]. However, Mr. Wiggs had no legitimate purpose to be on those
premises," Gemma said. "Probation is not a joke. A person can be violated for
hanging around with the wrong people."
If that's true, says LeBlanc, it almost would be more humane to do away with
probation and suspended sentences altogether than to continue to subject people
like himself to the constant worry of making even the slightest false move. No
doubt, those on probation need to stay out of trouble, but how far out of their
way should they go to avoid it? More important, will society ever believe they
have rehabilitated themselves enough to be trusted again?
The revocation racket
According to LeBlanc, everyone but the defendant makes out in the
state's revocation process, which is why so few have pushed to change it.
Indeed, probation-violation hearings can be so lucrative, even for a
defendant's own attorney, many local law firms advertise in the Yellow Pages as
specialists in this.
"Violations aren't tough. You don't have to prove much. They involve no
research, no nothing. It's a day of negotiations -- `Give me another $500, and
I'll try to get [the sentence] down from 18 to 16 months,' " says LeBlanc. "The
prosecutors, meanwhile, have a high success rate, and they've done nothing."
Of course, one way to avoid the potential for abuse would be to postpone the
probation-violation hearing until the conclusion of the criminal trial. The
state, after all, has bail and a host of other restrictions at its disposal to
keep ex-prisoners behind bars while they await trial. The alleged violators, on
the other hand, would then have a full and fair opportunity to prove their
innocence before returning to prison to serve a lengthy sentence.
According to legal experts, state law already allows the Attorney General's
office to move to schedule a jury trial first, but reform advocates like
LeBlanc -- and even some judges -- say the laws should be rewritten to
Otherwise, the result can be a "Heads I win, tails I flip again" proposition
for the prosecution, said one California Supreme Court judge who ruled on a
probation-revocation case in 1990. "The state, with all its resources and
power, should not be allowed to make repeated attempts to convict an individual
for an alleged offense, thereby subjecting him . . . to live in a continuing
state of anxiety and insecurity, as well as enhancing the possibility that even
though innocent, he may be found guilty," said the judge.
Increasing the burden
Another way to tackle potential abuses would be to toughen the legal
standards at probation hearings. According to deputy public defender Hurst,
there is no formal discovery process at probation revocations, and the rules of
evidence are so relaxed, "I sometimes find [probation hearings] an empty
promise," she says. "It's like saying, `You can defend against this, but we're
not going to give you the tools to do it.' "
As a result, the so-called burden of proof is so illusory, so "subjective,"
says Hurst, a doubt of innocence can convict.
Arthur Greene, of course, knows this only too well. Relaxing with his two
grandchildren one evening last December, he was hauled back on the state's
revocation railroad before he even understood what he was being charged with.
(As Hurst points out, the state doesn't need any evidence to arrest and jail
violators suspected of breaking the law.)
And even after Greene's violation hearing, it remained fuzzy as to his alleged
crime, because his grand-niece`s story changed. According to her statement to
police, she and her great-uncle were sprawled out on the couch, under a blanket
and watching television, one Sunday morning when the alleged molestation
occurred. Greene pulled his long johns down and "put his penis in my . . .
vagina," the girl said, while the rest of the family dressed for church.
While friends and family say the child and her grandmother (who is Arthur and
Debora's sister) moved to South Carolina following the incident, efforts by the
Phoenix to reach the grandmother, whose last known telephone number has
been disconnected, were unsuccessful. But during her discussion with police,
the girl's grandmother said the child never mentioned anything about rape to
her -- only that Uncle Arthur had touched her inappropriately. And that is what
the alleged victim eventually told Newport Superior Court Judge Francis Darigan
at Greene's probation hearing.
Afterwards, assistant public defender Christine O'Connell stuck to the
probation-revocation routine and suggested a plea agreement to Greene. "She
wanted me to roll over," he says. This time, though, Greene couldn't do it.
"For years, I've plea bargained," he says. "For years, I've been guilty, and I
don't want to be guilty anymore."
But when he expressed those feelings to O'Connell (who refused to be
interviewed for this story), she suggested he find another attorney -- which
didn't sit well with Darigan. Not only did the judge deny Greene's request for
new counsel, but Darigan chastised him for even bringing up the possibility,
says Debora Greene.
In other words, the system, in the form of Greene's attorney and the judge,
wanted the case dispatched. Accusing the defendant of stalling for time,
Darigan revoked his 12-year suspended sentence, and Greene was led away in
handcuffs. Process, not justice, seemed to prevail.
For Greene, what is particularly disturbing about the alleged molestation is
that he was staying with the victim's grandmother that Sunday to honor an
agreement he'd made with MAP. "I couldn't be alone in the house," he explains.
"My wife and son had gone out, so I went to [my sister's] to spend the night."
At the time, Greene knew his sister held a grudge against him for an incident
that happened a few years ago, when her daughter (the alleged victim's mother)
moved into his family's apartment.
"Arthur was living in Tonomy Hill [a public-housing project in Newport] at the
time, and wasn't supposed to have any extra people," says Debora Greene. "So
eventually, he asked [his sister's daughter] to leave. Well, the young woman
started going around saying he threw her and her two kids out onto the street
in the snow."
But whether the charges are merely a vendetta against Arthur Greene will
probably remain a mystery, because the state prosecutor has agreed to drop the
case, saying too much time has passed since the alleged crime. While Greene is
relieved to have avoided a lengthy criminal trial, he knows his chances of
proving his innocence now are slimmer. All that is left for him to do is appeal
the judge's decision to revoke his probation. If he loses on that count, he
will be a prisoner of the state for as many as 12 more years.
"In my heart and mind, I know that my brother is innocent, and I know my
sister knows that as well," says Debora Greene.
The question is, What if she's right?
Jody Ericson can be reached at firstname.lastname@example.org.