Defendants who are convicted of misdemeanors or felonies face jail or prison time. Some defendants can reduce or avoid incarceration if a judge grants them probation at sentencing. But probation is not simply a "get-out-of-jail-free" card. Probation is court-ordered supervision in the community and comes with the threat of incarceration hanging over the probationer's head. Probationers who violate the rules of probation, called terms and conditions, return to court for probation revocation hearings.
This article answers basic questions about probation violations: What counts as a violation? What happens at revocation hearings? What are the consequences for failing to comply with probation?
Judges set the terms and conditions of probation at sentencing. A probation violation occurs when a probationer doesn't comply with those rules. Most jurisdictions differentiate between rule violations (technical violations) and new offense violations (substantive violations).
A probationer commits a technical violation by disobeying the supervision rules. Technical violations include conduct that breaches the terms and conditions of probation but doesn't rise to the level of a new crime.
Examples of technical violations include:
Substantive violations of probation occur when probationers commit new crimes while they are on probation. For example, say Daniel is on probation for vandalism when he is arrested for theft. If he is convicted of theft, he will be punished for the theft conviction and for violating his vandalism probation by committing theft.
Is Parole the Same as Probation?
Many people confuse probation and parole, but they are not the same.
Judges grant probation at sentencing. Probation is an alternative to jail or prison often used for first-time offenders and less serious offenses. It allows a person to remain in the community while having to comply with certain conditions.
Parole describes a supervised release period after much of a person's prison sentence has been served. Prison inmates are released on parole for good behavior by a parole board decision (discretionary parole) or by statute (mandatory parole). The purpose of parole is to help parolees reintegrate into the community after serving time in prison.
Probation officers or prosecutors typically initiate probation revocation proceedings by filing a motion to revoke probation with the court. Motions to revoke probation can be triggered by technical violations documented by supervising probation officers or substantive violations documented in police reports.
A judge reviews the motion to revoke to determine if probable cause exists to believe the probationer violated probation. And, if so, the judge will issue a bench warrant or send the probationer a notice to appear in court.
At this point, probationers can voluntarily appear in court or risk being taken into custody at any time (like during a routine traffic stop, at the office, or when they report to the probation department). Probationers who end up in jail might be stuck there for a while: In many states, probationers aren't entitled to bail during revocation proceedings.
Probationers accused of a violation are entitled to a hearing in front of a judge. The burden of proof is on the prosecution to prove the violation by a preponderance of the evidence (a more likely than not) standard. The probationer has a right to counsel at the hearing, the right to cross-examine the prosecution's witnesses, and a right to present evidence. The rules of evidence apply but are somewhat relaxed. For example, reliable hearsay might be allowed.
Some probationers, particularly when faced with substantive violations, choose to waive their right to a revocation hearing and negotiate a plea bargain.
The consequences for violating probation depend on many factors—the nature of the violation, the number of prior violations, and the seriousness of the underlying offense. Upon finding a violation occurred, the judge must decide whether to:
For minor violations, the judge might decide to simply reinstate probation without modifications. In this case, the probationer's consequence is the record of the violation itself—probationers who violate might not be able to earn an expungement in the future.
If the judge wants to send a stronger message to the probationer about the consequences for noncompliance, modifications might include:
Probation revocation is the most serious penalty for a violation. The threat of incarceration looming over the probationer becomes a reality. The sentencing options available to the judge will depend on how the judge structured the original sentence when granting probation.
Imposition of sentence suspended. If the judge initially suspended the imposition of sentence, the judge can impose any sentence authorized at the time probation was granted. Basically, this option leaves the door open for the judge. Say Daniel is convicted of theft with a maximum sentence of five years in prison. The judge suspends imposition of sentence (handing down the sentence) and grants him three years of probation with an order to serve six months in jail as a condition of probation. If Daniel violates and the judge decides to revoke and terminate probation, the judge can sentence him to credit for time served (six months) up to the maximum of five years in prison.
Execution of sentence suspended. If the judge originally suspended execution of sentence, the judge has already chosen the sentence that will be imposed if probation is revoked. In this case, the judge imposed (handed down) the sentence but stopped short of executing it (sending the defendant to prison). Say Daniel is convicted of theft with a maximum sentence of five years in prison. The judge sentences him to three years but suspends execution of the sentence and grants him three years of probation. If Daniel violates probation and the judge decides to revoke and terminate probation, the judge has no choice but to send him to prison for three years (the five-year maximum is off the table here).
If you think you might be in violation of the terms and conditions of your probation, talk to a lawyer. A lawyer can review your terms with you and advise you on how to respond to a potential motion to revoke probation. If you face a revocation hearing, be sure to consult an experienced criminal defense lawyer who can represent you in court. Violating your probation can land you in jail or prison.