Sentencing Criminal Sentencing: Probation & Community Service Facts

  1. This article explains the process of sentencing in criminal court, the differences between parole and probation and how to handle revocation of probation and hearings.

    Pre-Sentence Report or Probation Report

    After a conviction of or guilty plea of a defendant,a report will be prepared for the judge which will be used by the judge to consider an appropriate sentence for the defendant. The "pre-sentencing report" or "probation report" is typically prepared by an indpendent agency and will contain the entire history of the defendant, including criminal records, work history and other factors a judge may consider in recommending the proper sentence.

    Factors for Judicial Consideration

    A judge may use many factors when considering the imposition of a criminal sentence, including the age and criminal history of the defendant. Victim impact statements and circumstances of the crime may also be considered, including belief of the defendant's sincere remorse. In addition to state or federal law that must be applied, the judge must consider the need for rehabilitation of the defendant and retribution to the victim (the "satisfaction" of the victim that the offender has been properly punished.)

    Suspended Sentences

    A judge may choose to impose a sentence but suspend the sentence from being carried out. First offenders will usually be given such sentences if it is believed that, after conviction, it is clear they are frightened sufficiently not to commit the same crime again. Other factors include lesser offenses coupled with overpopulated jails that need to be used for more serious offenders.

    Probation and Community Service

    Alternatives to prison or jail sentences include a responsibility of the defendant to pay back society via community service. Typically, these sentences are removed from one's permanent criminal record after completion of the terms of a sentence. This occurs frequently when there is a "deferred judgment" where a judgment for conviction does not occur, pending the defendant's satisfactory completion of the community service or probation time without any further criminal conduct. Upon completion, a guilty plea made earlier is "withdrawn" and the matter is considered as if no guilty plea had been made. With regard to federal sentencing guidelines, such probationary sentences may be included in one's criminal history.

    Differences between Parole and Probation

    When an 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 to a New Location 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.

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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