What Is Probation?
Depending on the nature of the offense and other factors, a criminal sentence (punishment) may include a period of probation, an alternative to incarceration. Let’s say the defendant is arrested and charged with shoplifting. The defendant, Suzy Shoplifter, has no prior arrests. After reviewing the evidence, Suzy decides that any reasonable judge or jury would find her guilty if she took the case to trial. So, Suzy wisely accepts the prosecutor’s offer of 12 months on probation and a $1,000.00 fine. Now, what are Suzy’s rights and obligations during the 12 months of probation?
First, Suzy will likely meet briefly with a probation officer before she leaves the courtroom. During that initial meeting, the probation officer may do some, or all, of the following:
1. Collect basic information, like Suzy’s phone number, address, height, weight, age, emergency contact names and numbers, as well as information about any tattoos, scars, or other identifying marks on Suzy’s body.
2. Schedule Suzy’s first formal meeting with the probation officer assigned to her file, which may or may not be the same person she met in court.
3. Give Suzy the physical address and telephone number of the probation office.
4. Give Suzy a list of the general, and possible special, terms of her probation.
5. Take Suzy’s photograph.
The terms of probation may vary from court to court and from case to case but are generally regarded as rules that the probationer (like Suzy) must follow. If the probationer violates one or more terms of her probation, the consequences may be severe. Terms of probation may include tasks that the probationer must complete, or terms may include things the probationer must not do.
One of the most common special terms of probation is “DO NOT VIOLATE THE LAWS OF ANY GOVERNMENTAL UNIT.” This prohibition includes violations of local, state, and federal laws. So, for example, let’s say that, while on probation, Suzy gets a speeding ticket. By driving over the speed limit, Suzy violated the laws of Georgia, a governmental unit, and thereby violated a term of her probation.
Taking this example one step further, Suzy is required to report to her probation officer once a month. Suzy is required to notify her probation officer of any new arrest or run-in with law enforcement. When she tells her probation officer about the speeding ticket, the probation officer may arrest Suzy for the probation violation. In that event, Suzy would go to jail, where she would await a hearing on the probation officer’s “Petition to Modify/Revoke Probation.” The hearing may occur within a few days, or it may take weeks or even months.
At the hearing, the issues for the judge to decide are simple.
1. “Did Suzy violate one or more terms of her probation?”
2. “If so, what is the appropriate consequence, or punishment, for the violation?”
The court can revoke any part of Suzy’s probated sentence:
1. if Suzy admits the violation, or
2. if the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation.
At the hearing, the probation officer will likely testify that Suzy violated a term of her probation by driving in excess of the speed limit and will likely call the police officer to testify about the details of the incident. Suzy will have the right to question the witnesses and the right to present her own evidence, including her own testimony. After the evidence has been presented, the judge will have to decide what to do.
Let’s say the judge finds that Suzy did, in fact, violate her probation. What is Suzy facing?
For violation of a special term or condition of probation, the judge may revoke the probation and require her to serve the balance or portion of the balance of the original sentence in jail!
What if, instead of violating a special term or condition, Suzy violated a general term of her probation other than by commission of a new felony offense? What would Suzy face in that case?
For a violation of a general term or condition of probation, the court shall consider the use of alternatives to include community service, intensive probation, diversion, centers, detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county. If Suzy doesn’t meet the criteria for those alternatives, the court may revoke the balance of probation or not more than two years in jail, whichever is less.
What if Suzy had committed a new felony offense, like aggravated assault?
In that case, the judge may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the felony offense!
Because every case is different, and probation terms vary, it would be impossible to list all terms of probation that would apply in any given case. It is imperative to abide by all terms of probation, both technical and substantive. The consequences of violating a term of probation can be devastating.
Finally, after Suzy finishes the probation hearing and learns her punishment, she still has to face the new speeding charge. The probation hearing is not about Suzy’s criminal guilt in the new case. The probation hearing is about the shoplifting sentence and whether Suzy violated her probation in that case. When Suzy goes to court for the speeding charge, she may be sentenced up to the maximum, 12 months in jail, on that charge! Remember, the burden of proof in the probation hearing is the civil burden of proof, or a preponderance of the evidence, which is much lower than the criminal burden of proof, beyond a reasonable doubt. So, it doesn’t take nearly as much evidence to prove that Suzy violated her probation as it would to prove her guilty of committing a new crime.