Probation is a figurative leash that the criminal justice system attaches to defendants in addition to or instead of other forms of punishment. Offenders who are put on probation are typically required to adhere to a number of conditions. Common conditions of probation include:
Probation officers also can check in on a probationer—at home or at work, announced or unannounced. Some probationers, such as those convicted on drug 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.
(You can read more about theFourth Amendment's ban on unreasonable searches and seizures at Rights of Suspects & Defendants.)
A sentence may consist of straight probation with no other punishment, or it may consist of probation following 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.
When deciding whether to give the defendant probation, the judge will first check to see whether the statute involved in the conviction allows for it (sometimes, legislators specify that probation shall not be given). Assuming that no such prohibition exists, the judge wil then look at the defendant’s criminal record and the seriousness of the crime. The judge will also consider:
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.