This article will assist you in understanding the basics of criminal law concerning sentencing, parole and probation. It will also cover pre-sentencing reports, suspended sentences, community service, bail, the differences between jail and prison and other topics of concern to an accused criminal defendant or convicted inmate.

The Pre-Sentence or Probation Report

After a defendant has been found guilty or entered a guilty plea for a crime, a pre-sentence report, also known as a probation report, will be prepared for the judge. The judge will use this report to help decide the appropriate sentence to give the defendant.

These reports are usually done by an independent agency that is not biased towards the prosecution or the defense. The defendant’s personal information, such as employment history and other criminal records will be included in the report. Statements by victims of the crime are also included in the report, which will frequently make recommendations for what might constitute an appropriate sentence.

Copies of the report are provided to the defendant but usually the sentencing recommendations are omitted. The defendant is given an opportunity to make any objections to this report. While the sentence recommendations are usually helpful to justices in making their final determination, a judge is not necessarily bound by these recommendations and can his or her judicial discretion within the prescribed limits of the law.

Imposing the Sentence

The judge imposes a sentence upon a defendant who has been convicted or who has pled guilty to a crime. There are guidelines specific guidelines set by law for particular crimes such as the amount of fines, length of imprisonment, jail time or probation. These guidelines may set the minimum and maximum amount of punishment the judge may impose on the defendant.

Factors a Judge Considers Before Imposing Sentence

The factors a judge will be considering when imposing a sentence upon the defendant may include the defendant's age and criminal history. A judge may also take into consideration the victim’s impact statements and the circumstances that were involved when the crime was committed. The judge may also determine if there was any remorse shown by the defendant for committing the crime. Essentially, a judge may take into account all factors that both provide satisfaction to victims that the offender has been punished as well as sufficient rehabilitative factors that would prevent the defendant from committing the crime again. The judge must also consider all federal laws and mandatory sentencing requirements in the specific crime that was committed.

Suspended Sentences

A judge has the capacity to impose a sentence and then immediately suspend it, which means that the sentence will not be carried out. A suspended sentence is usually given to first time offenders in the hope that this will give these first timers the incentive they need to stay out of trouble and fearful of being caught again. Another reason sentences are suspended is to deal with overpopulation of our jails when there is not enough room to house the convicted criminals of less serious crimes.

Community Service and Probation

Other than jail or prison sentences, community service and probation sentences are also an option that a judge may impose upon a defendant. Having a community service sentence or a probation sentence does not usually stay on one's permanent record after completion of the terms of a sentence. These types of sentences are usually imposed if a defendant plead guilty for the purposes of getting a deferred judgment, a diversion program or a deferred adjudication. Once the community service sentence or the probation sentence is successfully completed without further incident, the prior guilty plea is considered "withdrawn." It is as if the guilty plea was never made. However, according to the federal sentencing guidelines, these sentences can count as one point in your criminal history record. Pleading guilty with no conditions may result in a defendant having a permanent criminal record. If you are found guilty by a trial in court or a jury, you will have a permanent criminal record.

Difference in Jail Sentence and Prison Sentence

Jail sentences usually involve being incarcerated for up to one year, while a prison sentence can mean being behind bars for up to a lifetime. Jails are run by the city or county government while prisons are run by the federal or state government.

Jails:

• hold defendants for arraignment or trial date, unless freed by making bail
• hold a defendant during the time it takes for the case to be adjudicated if the defendant is unable to make bail
• hold convicted criminal defendants sentenced to less than a year
• hold those accused of violating the terms of probation or parole
• hold inmates in the custody of other jurisdictions, but in the process of being transferred

Prisons:

• are the primarily place of incarceration for convicted felons
• hold criminal defendants with a sentence of a duration of one year or greater imprisonment

Differences between Parole and Probation

When a inmate is granted parole it is because they have been let out of jail or prison early for good behavior. It comes with the condition that the inmate parolee be supervised by a parole agent. State parole boards determine if and when the inmate can become eligible for parole and they conduct parole hearings to make this decision to parole the convict. When an inmate is freed from prison pursuant to parole and they break the terms of their parole, the inmate can be sent back to finish out their original sentencing. Under federal guidelines, parole is now called “supervised release” in federal cases and federal courts do not use the term “parole.” There are set guidelines that determine how long the supervised release should last and a federal judge will make this determination.

Probation is an entirely different matter - it is actually a form of sentencing that a judge imposes on criminal defendants instead of providing immediate jail time. There are certain, specified conditions attached to a probation sentence and, if these conditions are violated, the defendant can usually be sent to jail with a term imposed by the judge. Probation is not an alternative sentencing that can be given to everyone and special circumstances prescribed by law must be present.

Moving While on Probation

If you are on probation and find it necessary to move, talk to your probation officer to find out how to start the process to get permission to move. Most likely you will only have to file a motion with the court to request permission to move. This motion should also include the request that your probation be transferred to the new locality so that you can report to a new officer in the new location. You must continue to make any required payments that you have been ordered to make as a condition of your probation. If there are conditions of drug testing, you must adhere to those as well. You may or may not need a lawyer to file this motion. Your probation officer can advise you on that.

Early Release from Probation

Depending on your state laws, an early release from probation may be granted on the recommendation of your probation officer. One usually needs to petition the court for an early release.

Revoking Probation

If you are not following the conditions of your probation, your probation officer informs either the prosecutor in your case or the court. A petition with a complaint can then be filed that asks the court for your probation be revoked. When this occurs, you will likely need to hire a lawyer or ask for one to be appointed to you if you can not afford one.

If probation is revoked, the original sentence may be imposed upon you. The court also has the option to re-sentence you to probation under more severe conditions, such as being placed on home detention, being put into a half-way house or being put into a supervised drug treatment program.

Hearing to Revoke Probation

While the judge is considering his decision to revoke your probation, you will most likely remain free on bail although state laws vary. You should check with your attorney for precise information regarding your specific jurisdiction.

The prosecutor will offer evidence to prove that you were in violation of your probation terms which must be proven only a preponderance of evidence (more likely than not or "51%-49%" that you were in violation of your probation terms.) If you are being accused of a new crime, the prosecutor must prove you are guilty beyond a reasonable doubt. Only a judge will hear the case, as there is no jury at a revocation hearing.

After the judge has ruled on whether to revoke your probation, you may appeal the decision to a higher court and request bail to be set until that hearing. The judge can deny or grant the request for bail. Judges may consider probation violators to be at higher risk for flight and may increase the amount of bail during the revocation appeal process.

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