What Is Probation? A Plain Guide to Serving a Sentence in the Community

When people think of a criminal sentence, they often picture a jail cell. In practice, many people convicted of crimes in the United States serve their sentences at home, at work and in their neighborhoods. That arrangement is called probation.

Probation is one of the most common outcomes in the criminal justice system, yet it is widely misunderstood. Here is a plain guide to what it is, how it works and what is at stake for the person on it.

What probation means

Probation is a sentence served in the community under the supervision of the court. Instead of going to jail or prison, or after serving a short period of custody, the person agrees to follow a set of rules for a fixed period of time.

If they meet those conditions, the case ends without further time behind bars. If they do not, the judge can impose additional penalties, including jail or prison.

Probation is not parole

The two terms are often confused. Probation is usually ordered by a judge at sentencing, often instead of incarceration. Parole is a conditional early release from prison, typically granted by a parole board, after a person has already served part of a prison sentence.

In the federal system, people released from prison usually serve a term of supervised release, which works much like parole. Federal courts can also sentence some defendants to probation.

Who receives probation

Judges consider many factors when deciding whether probation is appropriate. These include the seriousness of the offense, the person's criminal history, the risk they may pose to the public and any guidance set by state or federal sentencing laws.

Probation is common for first offenses, lower level crimes and cases resolved through plea agreements. Some states also offer forms of deferred adjudication or probation before judgment, where a conviction may be avoided or dismissed if the person completes probation successfully.

Common conditions

Every probation order includes conditions, and breaking any of them can have consequences. Some conditions apply to almost everyone, while others are tailored to the case.

Standard conditions

Typical rules include not committing any new crimes, reporting regularly to a probation officer, staying within a certain area unless given permission to travel, and keeping the officer informed of changes in address or employment.

Special conditions

Judges may add conditions linked to the offense or the person's needs. These can include drug and alcohol testing, treatment or counseling, community service, curfews, electronic monitoring, staying away from a victim and paying fines, fees or restitution.

Supervised and unsupervised probation

In supervised probation, the person meets with a probation officer who checks on their progress, verifies that conditions are being met and reports to the court. The level of contact often depends on how much risk the person is judged to pose.

Some lower level cases result in unsupervised or informal probation. The person does not report to an officer, but must still obey the law and meet any conditions set by the judge.

What happens after a violation

Probation violations generally fall into two groups. A technical violation is a breach of the rules, such as missing a meeting or failing a drug test. A new offense violation happens when the person is accused of committing another crime.

When a violation is alleged, the court can hold a revocation hearing. The US Supreme Court held in Gagnon v. Scarpelli in 1973 that people facing probation revocation are entitled to due process protections, including notice and a hearing. These hearings are less formal than trials, there is no jury, and the standard of proof is typically lower than beyond a reasonable doubt.

After a hearing, the judge may warn the person, add new conditions, extend the probation term or revoke probation and impose a jail or prison sentence.

Finishing probation

When the term ends and all conditions have been met, probation is complete. In many jurisdictions, a person can ask the court for early termination after showing a strong record of compliance.

For anyone facing probation, the most important step is understanding every condition clearly. A criminal defense lawyer or the assigned probation officer can explain the rules that apply in a particular case, and following them closely is the surest route to closing the case for good.