The US criminal justice system is based on deterrence: Don't do the crime if you can't do the time, as the song goes. The idea is to make the idea of committing a crime an unsavory prospect in the first place. Then, if a crime is committed, the behavior is punished so that, hopefully, it doesn't happen again.
Criminal penalties can be harsh, but not everyone who's convicted of a crime is sent to jail or ordered to pay a fine, even though the judge could have set such a punishment. Sometimes, they're given a second chance to go about their daily lives.
But it's not a get-out-of-jail-free card. They have to follow some rules, and if they don't, it could mean back to jail.
Probation is a set of rules or conditions that need to be followed, either as punishment for committing a crime, or to avoid a more severe punishment for committing a crime.
Each state has its own laws on how probation works, but in general, it:
- Usually is available only as a punishment for minor crimes (called misdemeanors) and first-time or juvenile offenders. In other words, if you have a long criminal record or commit a very serious crime (most felonies), like kidnapping, you probably won't get probation
- May be all or part of a criminal sentence. For example, your sentence could be six months' probation. Or, it could be 30 days in jail, and when that time is up, six months' probation
- May require you to meet regularly with an assigned probation officer
- May require only that you do certain things, like attend drug or alcohol abuse counseling, without the need of meeting periodically with a probation officer
- Usually lasts for three to five years, but shorter periods are common for first time and very minor crimes
- May or may not require you to wear a monitoring device (like an ankle bracelet)
- More common for defendants convicted of non-violent crimes to receive probation - even on second offenses - as jails and prisons suffer from overcrowding and state and local governments struggle with their budgets
Violating probation is a crime in itself, and the consequences can be serious. Any number of things can trigger a parole violation, but the most common violations happen when you don't follow the probation rules or conditions given by the court, such as:
- Not completing community service or drug, alcohol, parenting or other court-ordered counseling
- Not paying fines, or not repaying the victim of the crime (called restitution), on time and in full, as ordered by the court
- Not showing up in court for scheduled hearings
- Not reporting to your probation officer
- Not getting and keeping a job
- Not visiting someone or someplace - such as a boyfriend or girlfriend, or their homes - for a certain period of time
- Not staying in the area the judge may have confined you to - such as your city or town
Other than violating the specific rules and conditions set out by the court, a probation violation is almost always triggered if, during the probation period, you:
- Are arrested or commit another crime
- Use, sell, or possess illegal drugs
If you violate probation, your probation officer (if you have one) may give you a warning. If you stay out trouble after that, you shouldn't have any more problems.
However, your probation officer - or the court itself if you don't prove to the court that you did everything required by the probation order - may order you to appear in court for a probation violation hearing.
If the judge finds that more likely than not (or by preponderance of the evidence) you violated parole, the judge may:
- Add time or requirements to your original probation, such as increasing the term from one to two years, or requiring you to attend counseling
- Order you to spend a few days in jail and then resume probation
- Order you to pay fines and restitution
- Revoke or cancel your probation and send you to jail for the amount of time allowed by the law
If you're fortunate enough to get probation instead of jail time or hefty fines, take advantage of it. Follow the rules set out by the court and avoid the harsh penalties you could have gotten in the first place.
Questions for Your Attorney
- Can a judge refuse to give a defendant probation even if the prosecution agrees to probation as the sentence?
- Do I have still have a criminal record after I complete probation?
- Do I have the right to a free attorney at a probation violation hearing?