The Details of Probation in the Criminal Justice System

How does probation work?

Probation is a figurative leash that the criminal justice system puts on defendants in lieu of incarceration in jail or prison. Offenders who are put on probation (either instead of or in addition to any other punishment they might receive) are typically required to adhere to a number of conditions of probation. Common conditions of probation include:

• obeying all laws (breaking even petty laws like jaywalking have been known to land a probationer back in jail)
• abiding by any court orders, such as an order to pay a fine or restitution
• reporting regularly to the probation officer
• reporting any change of employment or address to the probation officer
• abstaining from the excessive use of alcohol or the use of any drugs
• refraining from travel outside of the jurisdiction without prior permission of the probation officer, and
• avoiding certain people and places (for example, an offender convicted of assaulting his ex-wife may have as one condition of probation that he avoid any contact with his ex-wife or her family)

Probation officers also can check in on a probationer-at home or at work, announced or unannounced. Some probationers, such as those convicted on drugs charges, are also subject to random searches and drug tests. Most courts have concluded that probationers do not have the same Fourth Amendment rights to be free from unreasonable searches and seizures as other people.

If I get probation, does that mean I won’t go to jail?

Not necessarily. A sentence may be straight probation with no other punishment, or it may be probation following some time in jail. Most commonly, the judge sentences the defendant to a certain period of time in jail, but suspends (puts on hold) the jail time and lets the defendant serve the remaining portion of the sentence on probation. If the defendant violates any of the probation conditions, however, the judge can lift the suspension and put the original sentence back in place.

What factors will the judge consider when deciding whether to give me probation?

When deciding whether to give the defendant probation, the judge will look at the defendant’s criminal record and the seriousness of the crime. The judge will also consider:

• whether the crime was violent
• whether the defendant is a danger to society
• whether the defendant made or is willing to make restitution to the victim, and
• whether the victim was partially at fault.

What type of supervision does the probation officer provide?

Reporting to a probation officer can mean a number of things. The offender may be required to go to the probation office once a week, monthly, or even less frequently. In some busy metropolitan areas it may only mean mailing the probation officer a postcard once per month. As stated above, probation officers may also search probationers, may show up at their homes or workplaces, and may require probationers to submit to drug tests.

If my probation conditions are too difficult to live with, is there a way I can get them changed?

If a defendant can show good cause why a judge should change the original probation order, the judge may grant the request and modify the terms of probation.

If I violate a condition of my probation, what’s likely to happen to me?

Defendants caught (either by police or probation officers) violating a condition of probation are subject to having their probation revoked (taken away) and all or part of the original suspended jail or prison sentence reimposed. Since one typical condition of probation is to obey all laws, a probationer who is rearrested on even a minor charge may then be subject to penalties for both the current arrest and the probation violation.

Do I get a hearing before my probation is revoked?

Yes. If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing. If the defendant violated probation by breaking a law, the probation revocation hearing will probably take place after the new offense has been disposed of. If the violation was not a new criminal offense but nevertheless broke a condition of probation (for instance, socializing with people the judge prohibited a defendant from contacting), then the revocation hearing may take place as soon as practicable after the violation is reported. Defendants are entitled to written notification of the time, place, and reason for the probation revocation hearing.