People who are convicted of criminal offenses usually face fines, jail time, or both. But for some defendants, there's a middle way: Probation. Probation is a chance for defendants to remain in the community and continue with work or school, as long as they obey the law and satisfy other conditions. But defendants who fail to play by the rules might end up in jail or prison.
Judges have multiple sentencing options for defendants convicted of misdemeanor or felony crimes. The harshest option is usually incarceration (jail or prison). Probation—a period of court-ordered supervision in the community—provides an alternative to incarceration. A grant of probation can help defendants avoid jail entirely or shorten their jail sentences. Judges impose conditions of probation that defendants must comply with to stay out of jail or prison.
In cases where probation is an option, judges often can give "straight" probation, which means that court-ordered supervision is the entire sentence. Or, they might impose a short jail sentence, followed by probation.
Here's how a probation sentence might look:
Statutes (laws) define who is eligible for probation. Typically, defendants are ineligible for probation because of the nature of their offense (such as sex crimes) or their criminal history (repeat offenders).
But being eligible for probation doesn't guarantee that the defendant will get it or that it's the best option. Eligible defendants can bargain during plea negotiations for the prosecutor's promise to recommend (or at least not object to) probation. Defendants can also request probation at sentencing in front of a judge. Before requesting probation, though, discuss with your lawyer how probation versus serving the time will affect you.
Ultimately, as long as the defendant is eligible, judges decide whether to place defendants on a period of probation. Judges consider factors like:
Before sentencing, a probation officer may interview the defendant and fill out a presentence investigation report (PSI), which provides the above information and the officer's recommendation on probation.
Probation allows defendants to stay out of jail or prison, but only if they follow the judge's orders (called probation terms and conditions). Probation conditions must be reasonably related to the probationer's rehabilitation or protection of the public.
Typical probation conditions include:
Judges also impose conditions tailored to the particular offense and offender. For example, a judge might order a defendant convicted of stalking to have no contact with the victim or a defendant convicted of selling drugs to submit to warrantless searches without probable cause (called a search condition).
The length of probation depends on where a defendant lives. In some states, statutes limit the amount of time a judge can place a defendant on probation. For example, many states cap probation at a set number of years (such as two years for misdemeanors and five years for felonies). Other states limit the amount of time a defendant can be on probation to the maximum length of incarceration for the offense. A few states have no limits—defendants can be on probation for ten months, ten years, or even life in some cases. Most states allow judges to extend the length of probation when defendants violate the conditions of probation or terminate probation early for good behavior.
Most states offer two types of probation:
Defendants on informal probation don't have probation officers. Instead, they report directly to the court when necessary, to provide proof of completion of conditions (like community service), pay fines, update contact information, or report a new arrest or conviction. Judges typically impose informal probation in misdemeanor cases.
Defendants on formal probation do have probation officers. Defendants must report to their probation officers as directed in person, by mail, or by telephone.
Defendants successfully complete probation when they satisfy all of their conditions and remain crime-free for the duration of probation. Probation typically ends on a date set at sentencing, but a judge can grant early termination. For example, suppose Jalen is sentenced to five years' probation for embezzling money from his employer. Within three years, Jalen pays full victim restitution, completes community service, earns a college degree, and satisfies all other conditions of probation. A judge might terminate Jalen's probation early based on his exceptionally good behavior.
Probationers who successfully complete probation might be eligible to expunge (seal, erase, or limit public access to) their criminal records, depending on the nature of the conviction and any prior convictions.
For those defendants who don't comply with the probation conditions, they could end up back in front of the judge facing more onerous probation terms or revocation of probation. Learn more in our article on Probation Conditions: Violation Penalties and Revocation.
If you are facing a sentence that includes probation, talk to a local criminal defense lawyer about your situation. A lawyer can explain how probation works in your county and answer questions about probation conditions. You should not take probation lightly. Failing to comply with the terms of your probation can land you in jail or prison.