When a defendant is convicted of a crime in California, judges can typically grant probation (What’s the difference between formal and informal probation in California?) in lieu of jail or prison time. (Probation sometimes includes a period of time in jail.)
Probation is considered an act of leniency. But a defendant who’s been granted probation isn’t completely out of the woods. The possibility of jail or prison time still looms, as a probationer who violates a condition can land in hot water. (For more on violations of probation, see Probation Revocation.)
A California judge who grants probation is supposed to at the same time specify whether:
If the defendant later violates probation, the sentencing options available to the judge depend on whether he or she originally ordered ISS or ESS.
With ISS, the judge typically orders probation for a certain number of years without specifying a sentence. ISS gives the court the most flexibility should the defendant later violate probation. If the defendant does violate probation, the judge has two basic options:
When a judge grants probation with ESS, she announces the sentence, then suspends its “execution.” If the defendant later violates probation, the judge has the same options as with ISS: reinstate probation or order a sentence. The difference between ISS and ESS lies in the sentence the judge orders, if she indeed chooses to order one. With ISS, the judge gets to choose the sentence; with ESS, the judge must implement the sentence she previously chose but suspended. The judge can’t modify the sentence in any way.
For instance, a judge could sentence a defendant to five years in prison and suspend the sentence for five years (those five years equal the period of probation). Defense attorneys would call this a “five-year hammer.” If the defendant violates probation and the judge decides to implement a sentence, the judge must send the defendant to prison for five years. Period.
Occasionally, a judge suspends the imposition or execution of a sentence without explicitly ordering probation. This kind of order has the effect of putting the defendant on probation. That’s because California courts don’t have the authority to order ISS or ESS without granting probation.