Probation and conditional discharge are two of the most frequently used sentencing options. Both of these sentencing options are distinguished by terms or conditions placed on the convicted person and are designed to control the future behavior of the defendant and society as a whole.

Probation is utilized when a person is convicted of a crime (felony or misdemeanor). The imposition of a term of probation is most often preceded by the preparation of a pre-sentence report conducted by the county probation department. The probation officer will conduct an in depth investigation into the facts and circumstances of the crime and the personal background of the defendant. This investigation usually includes:

  • Prior criminal background of the defendant including a check of the record of conviction (rap sheet) of the defendant
  • Family history, including interviews with family members; parents, siblings, spouses, and older children
  • Narrative statements of the criminal transaction and any similarities with prior convictions of the defendant
  • Interview with the defendant
  • Psychological/medical/substance abuse history of the defendant
  • Psychological/substance abuse evaluations with recommendation as to how counseling could be included as a provision of probation
  • Level of education and training of the defendant
  • Employment history
  • Military service and training
  • Interview with the investigating/arresting police officer
  • Interview with the victim, including a written impact statement with the victim’s input as to their position on sentencing

Finally the report will contain a narrative synopsis of the information gleaned from the report with recommended terms of conditions or probation. It must be pointed out that while the sentencing court relies heavily on the pre-sentencing report in determining the ultimate sentence, the recommendation, is exactly that, a recommendation. The court is free to deviate from or modify the recommendation as the individual case dictates. The advice of a competent and knowledgeable attorney is absolutely indispensable in putting forth arguments to the court in favor of their clients.

Terms of supervision: The pre-sentence report will conclude with a recommendation as to the terms and conditions placed on the defendant. These terms are frequently extensive and are intended to be tailored to the specific needs of the defendant as the probation officer interprets them. An experienced attorney can attempt to convince the court that certain terms are unsuitable for their particular client and should be modified.

Pre-plea probation investigation: In some counties the probation department will conduct a pre-plea investigation to guide the prosecution, defense and court as to what recommendations are likely to be made in the event there is a finding of guilt. In my experience, these pre-plea investigations, if used, are only done in felony matters.

Term of probation: During the time that the defendant is on probation, they are under the direct supervision of a probation officer who will confirm that the terms and conditions of the sentence are being satisfied. The probationer will be required to meet with the probation officer on a regular basis, and any failure to do so or failure to comply with the probation terms will usually result in a Violation of Probation being filed. The defendant, if a violation is established, is subject to the whole range of potential sentences including jail, which were available prior to the person being sentenced to probation.

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