Defendants who are convicted of misdemeanors or felonies often face sentences that include jail or prison time. In some cases, defendants can reduce the amount of time they are incarcerated or avoid imprisonment altogether if a judge grants them a type of supervised release called probation. This article explains how probation works.
Judges have multiple sentencing options at their disposal. Criminal sentences can include incarceration, probation, fines, restitution (victim compensation), community service, diversion, or a combination of these options.
Probation is a court-ordered period of supervision served in the community. Courts can grant probation in most misdemeanor and felony cases as an alternative to incarceration or following a period of incarceration. When a judge sentences a defendant to probation, the judge typically suspends the jail or prison sentence and makes the suspension conditional on the defendant meeting certain requirements (see below “Conditions of Probation”). For the duration of probation, the threat of incarceration continues to loom over the defendant’s head.
Say Julia is convicted of a crime that carries a maximum sentence of six months in jail. A judge might sentence her to one year of probation with conditions. If Julia complies with the conditions of probation, her sentence is complete after her year of probation. But, if she violates probation (doesn’t follow the conditions), the judge can impose and order her to serve the six-month suspended jail sentence.
Judges ultimately decide whether to grant or deny probation at sentencing. If probation is granted, defendants (now called probationers) must agree to abide by the conditions of probation ordered by the judge. Probation conditions must be reasonably related to the probationer's rehabilitation or protection of the public.
Standard probation conditions include:
Discretionary probation conditions imposed on a case-by-case basis might include:
Defendants who would rather not be saddled with stringent conditions can refuse probation and serve their jail or prison sentence outright.
Generally, judges can use their discretion in deciding the length of probation—as long as they don’t exceed the maximum the law allows. In some states, statutes limit the amount of time a judge can place a defendant on probation, such as a set number of years or the maximum length of incarceration allowed for the offense. Other states place no such constraints—probation can be a few months, 10 years, or even life in some cases.
A judge can sometimes extend the length of probation if a probationer violates the conditions of probation. Probation is usually tolled (suspended) when the probationer is a fugitive from justice or serving a sentence and, sometimes, when a violation of probation is pending.
Probation supervision can take many forms. Formal (also called active) probation requires probationers to report as directed to probation officers in person, by mail, or by telephone. Typically, state and county agencies operate supervision departments. A handful of states contract with private probation companies to supervise probationers and monitor compliance.
Probationers on informal (also called inactive, court, or summary) probation don’t have probation officers. They report directly to the court when necessary to provide proof of completion of conditions (like community service), pay fines and fees, update contact information, or report a new arrest or conviction.
Probation in felony cases will almost always be formal. Informal probation is more common in misdemeanor cases. When probationers perform well, judges might have the discretion to modify probation from formal to informal.
Probationers who violate (fail to comply) with conditions of probation face consequences ranging from a warning from their probation officers to incarceration.
Probationers are entitled to a hearing in front of a judge when a probation officer or a district attorney alleges a violation of probation. The burden is on the prosecution to prove the violation by a preponderance of the evidence (a more likely than not) standard.
If the judge finds (or the probationer admits) a violation, the judge decides whether to revoke (terminate) or reinstate (continue) probation. When probation is revoked, the judge can require the defendant to serve the suspended jail or prison time. When probation is reinstated, probation continues with or without modifications to conditions.
Probationers successfully complete probation when they satisfy all conditions, attend all required court appearances, and remain crime-free. Probation typically ends on a date set at sentencing, but probationers who are doing particularly well might earn an early termination.
Probationers who successfully complete probation might be eligible to expunge (seal, erase, or limit public access) their criminal records depending on the nature of the conviction.
If you are facing a sentence that includes probation, be sure to ask your lawyer for information on how probation works in your county or state. If you are uncertain about a condition of your probation, ask a lawyer for clarification. Failing to comply with the terms of your probation can land you in jail or prison. If you’ve been accused of violating your probation, be sure to consult an experienced attorney who can represent you in court.