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Probation

Instead of sentencing a defendant to a jail sentence, a judge may choose to sentence them to probation. Although this releases the person back into the community, they do not have the same level of freedom as an average citizen. Instead, there are a variety of conditions that restrict their behavior. The court may revoke or change the probation if they violate one of those conditions. 

While judges set the conditions, probation officers enforce them by requiring random and scheduled check-ins with the person on probation.

This article summarizes probation. Specifically, it covers the following:

  • The circumstances in which a court may order probation
  • Different types of probation
  • Various conditions of probation
  • Probation violations and their consequences

For more information, read FindLaw's article on probation frequently asked questions (FAQ) or contact a criminal defense lawyer for specific legal advice.

When Is Probation Ordered?

Courts sometimes sentence people to probation instead of jail. Other times, courts may release prisoners on parole, and probation is part of their release conditions. The primary goals of probation are:

  • To rehabilitate the defendant
  • To protect society from the defendant's potential further criminal offenses
  • To protect the victim's rights

Courts typically grant probation for first-time or low-risk offenders. Statutes determine when it's possible instead of jail time, so a person's criminal record and criminal charges affect the possibility and extent of probation available.

Ultimately, the judge decides whether to sentence a person to probation or jail time. Even though sentencing judges have this discretion, they must stay within statutory limits. For example, a judge cannot impose probation for an amount of time longer than the statute's maximum sentence.

Defendants often negotiate for probation during a plea bargain. Sometimes, by admitting their wrongdoing, defendants may avoid jail time and get probation through a plea agreement instead.

Types of Probation

There are several types of probation. In general, they fall into one of the two following categories:

  • Unsupervised probation
  • Supervised probation

Courts typically sentence a person to unsupervised probation when the person commits a low-level offense or if the person presents a low risk of danger. While unsupervised probation may differ by jurisdiction, it often is an agreement between the court and the convicted person on the convicted person's behavior. For example, it may require the convicted person to do the following:

  • Stay out of legal trouble for the duration of probation (i.e., no new crimes)
  • Pay court-ordered fines or restitution to the victim
  • Complete court-ordered community service
  • Keep the court updated on the goals of probation

Instead of a probation officer, someone on unsupervised probation reports to the court when required. Some jurisdictions refer to unsupervised probation as informal probation, as it typically places less severe restrictions on the convicted person than supervised probation.

Supervised probation requires the convicted person to meet with a probation officer regularly. Such probation may place many conditions on the suspended sentence. Also, probation supervision by a probation officer may involve supervision fees that the person on probation must pay.

Conditions of Probation

Judges set the conditions of your probation. If you fail to follow the terms of probation, the court may impose a prison sentence or add more restrictive conditions.

Judges must set reasonable conditions of probation. This means a judge cannot set vague, overbroad, or arbitrary conditions and must generally relate to protecting the public. Also, if a judge wishes to impose special conditions, those conditions must relate to the nature of the crime committed.

The terms of probation may change based on your criminal charges. Consider the following examples of probation conditions:

  • For some drug crimes, you may need to undergo regular drug testing.
  • Courts often set curfews for people on probation.
  • If the government charges you with driving under the influence (DUI), it may restrict you from drinking alcohol for some amount of time and undergo frequent alcohol testing.
  • For domestic violence crimes, the court may restrict you from contacting the victims.
  • The court may assign a probation officer you must meet or contact regularly.
  • The court may order you to perform community service.
  • The court will likely order you to pay any court costs associated with your criminal charges.
  • You must attend all court-mandated appearances.

The length of your probation period depends on several factors, including your criminal record and the severity of your charges. Some probation periods may last six months. Others may last years. In the case of sex offenders, probation may last a lifetime.

Probation Violations

If someone violates a condition of their probation, it could lead to severe consequences. A violation of probation, such as committing a new crime, may lead to the following:

  • Revocation of probation
  • An extension of the probationary period
  • More conditions on their probation
  • A change in the type of probation
  • Fines
  • A warning from the court or probation officer

A probation officer is the only person who may make a motion for a probation violation hearing. A police officer, for example, may contact your probation officer about a potential probation violation, but they can't determine whether you violated probation.

Your probation officer decides what to do with any given probation violation. A minor violation may result in a warning, but violating a probation condition often leads to a probation violation hearing. If the probation officer determines a probation violation hearing is necessary, they typically report the violation to the district attorney's office.

A probation violation hearing (revocation) occurs in a court before a judge. The probation officer or district attorney may present evidence that the person on probation violated a condition of probation. The probation officer must prove by a preponderance of the evidence (i.e., it's more likely than not) that the probationer violated the condition of probation. The judge then decides whether the person violated probation and, if so, the resulting punishment.

Probation Revocation

Courts must complete several procedural requirements before revoking probation. Due process guarantees a probationer several rights, including the following:

  • A court must give them notice of the proposed revocation
  • The court must conduct a hearing before a neutral hearing body
  • They have a right to testify at the hearing
  • They may present supporting witnesses on their behalf
  • They may confront the witnesses against them
  • They must receive a written statement containing the judge's reasons for the revocation

If there's enough evidence, violating a condition may result in probation revocation. If a court revokes your probation, you may appeal, although it depends on your state's laws. Also, if a trier of fact concludes the court's conditions were unreasonable, they may overturn the revocation.

Have Questions About Probation? An Attorney Can Help

Courts may sentence a person to probation for criminal matters ranging from low misdemeanors to the harshest felonies. Before accepting a probation sentence, consider contacting a criminal defense attorney. An experienced criminal defense attorney can give legal advice about your criminal case and criminal law. They may also help you negotiate your probation conditions.

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