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:
- going to jail for a shorter time than if probabtion had not been imposed (see below)
- obeying all laws (breaking even petty laws like jaywalking have been known to land a probationer back in jail)
- abiding by any court orders, such as an order to pay a fine or restitution
- reporting regularly to the probation officer
- reporting any change of employment or address to the probation officer
- abstaining from the excessive use of alcohol or the use of any illegal drugs
- refraining from travel outside of the jurisdiction without prior permission of the probation officer, and
- avoiding certain people and places (for example, an offender convicted of assaulting his ex-wife may have as one condition of probation that he avoid any contact with his ex-wife or her family).
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.)
Probation and Jail
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.
Factors Judges Consider When Deciding on Probation
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:
- whether the crime was violent
- whether the defendant is a danger to society
- whether the defendant made or is willing to make restitution to the victim, and
- whether the victim was partially at fault.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.