Criminal Law

Criminal Law Sentencing Parole and Probation FAQ

Q: Can I move if I'm on probation?

  • A: People who are on probation are typically required to check-in regularly with their probation officers, sometimes by phone, sometimes in person. In addition, they may be required to attend counseling or classes that address substance abuse; and they may be prohibited from traveling.

    If you want to move while on probation, the issue will be to what extent, if at all, the move will affect the responsibilities you’ve undertaken when accepting probation. For example, moving from one unit to another in the same apartment complex will probably not affect your reporting duties; but moving to another city, and certainly to another state, will have serious ramifications. The local court and probation office will not expect to supervise you from afar; and they’re not going to let you off the hook just because you’re no longer local. Moving beyond the jurisdiction of the court that sentenced you (and the reach of the probation office that supervises you) will normally require transferring supervision to another county and office. Your local probation office is not going to do that lightly; it’s time-consuming and expensive, and you will need a very good reason for the move in order to convince the office to undertake the transfer.

Q: Can probation be revoked?

  • A: Probation can certainly be revoked, if the sentencing court concludes that the probationer violated a term or condition of probation. Typical reasons for revocation include failing to pay restitution, failing to show up for counseling or other services, not performing community service assignments, not showing up for weekend jail days, continued drug use (as evidenced by tests), consorting with individuals you’ve been told to avoid (gang members, victims), and, of course, subsequent criminal activity. Note that as to the latter, revocation can occur even in the absence of a criminal conviction for that subsequent activity. Courts will appoint counsel for probationers facing probation revocation hearings.

Q: Can you appeal being found guilty of violating probation?

  • A: Following a hearing and a decision by a court to revoke probation, the probationer may appeal. Most of the time, such appeals are not successful, because the standard of proof required to support a revocation is less rigorous than the normal “beyond a reasonable doubt” standard. One notable exception, however, involves the probationer whose revocation is based on an alleged subsequent criminal act, for which he is later found not guilty. In some states, if probation is revoked and later the probationer is tried for the act but found not guilty, the revocation cannot stand and an appeal of the revocation would be successful.

Q: Do I have to complete the entire probation time?

  • A: Most of the time, a person’s period of probation must be completed. In rare situations, where the probation department feels that there is no need for continuing supervision because of the probationer’s exemplary record, the probationer can convince the prosecution to reopen the case, go back to court, and tell the judge that it’s not necessary to keep probation in place.

Q: Does community service or probation still go on your permanent record?

  • A: Your criminal record consists of arrests, convictions, and the specifics of any sentence. Probation is a type of sentence; instead of going to jail (or sometimes after a short jail sentence), the defendant remains out of custody but must conform to certain terms and conditions (such as maintaining contact with the probation office, attending counseling, remaining drug-free, paying restitution, and maintaining employment or student status). A common term of probation is community service, which involves working with local government or charities to help them accomplish their mission. For example, a popular form of community service might be to assist a meal preparation service that delivers food to needy recipients. The court file would include this term of your probation, and your criminal record would note that you received probation for the underlying conviction.

    Criminal records are permanent in the sense that they remain available to law enforcement and prosecutors, even long after the dates of conviction. Defendants who are eligible for sealing or expunging the underlying conviction can apply for that remedy, and if it’s granted, the record will be off-limits for most other purposes. For example, you will be able to answer “No” when asked by a landlord whether you have a conviction, but if you want to work in law enforcement or with children or vulnerable adults, that conviction will be considered. In sum, depending on the specifics of your conviction and your state’s sealing procedures, you may be able to shield the fact of your probation and its terms from many inquiries.

Q: Is there any difference between being sent to jail or prison?

  • A: There’s a big difference, in terms of time spent and living conditions (and the nature of your fellow inmates). Here are some specifics:
    • Who is the landlord? Jails are operated by local governments, whereas a prison is part of a state-wide system.
    • Who are the inmates? Jails house people who are awaiting trial and have not posted bail. They also house people convicted of misdemeanors, and sometimes felons who have been given a short stay in the local jail and a period of probation.
    • How long do the inmates stay? In most states, jail inmates who have been convicted of misdemeanors stay no more than a year (Iowa is a noted exception; misdemeanants can receive up to two years’ jail time). By contrast, state prisons accommodate sentences of up to life in prison.
    • How do jail and prison differ in inmate experience? Jails are full of relatively short-term residents, with a constantly changing roster of inmates, whereas a prison consists of a more stable population. The stresses associated with each are accordingly different: Some jail residents have never been incarcerated and are bewildered and confused; prison inmates who are inside for a number of years are at least used to their surroundings.

Q: What's a presentence investigation report, and what's it used for?

  • A: In felonies and serious misdemeanors, sentencing judges rely on a “pre-sentence report” written by the local probation office. This report will be prepared after the conviction, but before the sentencing hearing. The purpose of the report is to give the judge a full picture of the defendant and the circumstances of the crime, to allow defendants to present favorable facts about their lives and plans, and to give victims a chance to tell their stories. Most reports include a sentencing recommendation.

    To prepare the report, the probation officer first interviews the defendant and reviews the defendant’s criminal, employment, and education histories. Typically, the officer speaks with the arresting officer and any victims of the crime, and will often interview the defendant’s family and friends.

    The defense will be given a copy of the report prior to sentencing, and a copy will be filed with the court. At sentencing, the defense will have an opportunity to contest any portion of the report that it feels are wrong or misleading.

Q: What types of sentences are there?

  • A: Sentences vary according to the severity of the crime. Felony sentences are the most severe; misdemeanor sentences are less so, and punishments for infractions are the least serious. Here are some types of punishment:
    • Probation. Probation allows the defendant to avoid spending time in jail or prison, though it may be granted after an initial, short time in jail. An out-of-custody probationer must meet the terms and conditions of his release, which typically include remaining arrest-free, paying restitution to the victim, attending counseling, avoiding certain people or groups of people (victims, gang members), and maintaining employment.
    • Fines. A criminal fine can be imposed for infractions (minor traffic violations), most misdemeanors, and felonies. The size of the fine can range from less than $100 to many thousands of dollars. Fines are not the same as restitution; the money goes to the government as a way to partially offset the cost of prosecuting the defendant.
    • Forfeiture. For some crimes, the judge may order the defendant to forfeit, or give up, property that was involved with or used in conjunction with the crime. For example, a judge may order the defendant to forfeit a car that was used to transport illegal drugs.
    • Jail time. Jails are maintained by the local government and are intended for those awaiting trial, misdemeanants, and certain felons who have received probation plus jail time. In most states, a jail sentence is less than one year.
    • Prison time. Prisons are run by the state, and house people convicted of felonies. Sentences range from slightly over a year to life in prison without parole.
    • Death. In extremely serious cases that have been tried as “death penalty cases,” the jury may return a verdict of death. These inmates are housed in special units of the state prison.

Q: What's the difference between someone on parole and someone on probation?

  • A: Parole is a system of release from prison, for prisoners who have served part of their sentences and whom the parole board deem ready for early release. (Since 1984, federal prisoners whose crimes pre-date November 1, 1987, cannot attain parole.) Probation, on the other hand, can be granted directly after conviction, and given to defendants who have not served any time at all. Both parole and probation can be revoked if the recipient commits a crime or otherwise violates the conditions of their release. Here’s some more information on parole and probation.

    People on parole, having been released from a prison, have committed felonies (generally, only felons are sent to prison; those with misdemeanor sentences are sent to local jails). Most of the time, parole is not a right; instead, whether to grant it is up to a group of officials (not necessarily judges), who have complete discretion as to whether a prisoner is fit for parole. Parole always comes with “conditions,” or behaviors that the parolee must follow in order to remain out of prison, such as regularly meeting with a parole officer, working, and not committing further crimes.

    Probationers are typically subject to similar conditions, which may also include staying away from specified individuals (such as gang members). Both parolees and probationers may lose their freedoms if they violate these conditions. Each is entitled to a hearing on the matter, and if the board or judge determine that the violation occurred, the person can be sent back to prison or sent to jail; or allowed to remain at liberty with additional conditions. In most states and in the federal system, counsel will be appointed for those who cannot afford to hire an attorney.

Q: What's the point of a suspended sentence?

  • A: A suspended sentence is one that has been entered into the record, but not imposed—yet. Instead, the judge gives the defendant probation, and instructs the defendant to abide by its terms and conditions. If the defendant complies with the requirements of probation, he can avoid going to jail or prison. Quite simply, a suspended sentence is a sword hanging over the defendant’s head, which will come crashing down if the defendant violates a condition of probation.

    For example, a first-time burglar might receive a suspended sentence of one year in jail, suspended as long as he successfully completes a one-year term of probation. This defendant will need to check in with his probation officer and follow all other requirements of his probation. At the end of the probationary term, if he followed all of the conditions, he’ll be out from under the threat of going to jail. But if, during that period, he re-offends or otherwise doesn’t comply, the probation officer can bring him back to court for a probation revocation hearing. If the judge finds that the violation occurred, the judge can impose the suspended sentence (or some of it).

Q: Who sets a sentence, and how's it determined?

  • A: A sentence is the punishment for a specific criminal act. In some states, the legislature sets a specific sentence for each crime, such as ten years for an armed robbery. In other states, the legislature specifies a range of time, like two, three, or four years, for each crime; the judge then chooses the appropriate sentence, based on the defendant’s history and the circumstances of the case. Finally, when the prosecution has tried a case as a death penalty case, the jury that heard the case and found the defendant guilty will then be asked to decide whether to impose the death penalty.

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