PROBATION: A SIGH OF RELIEF OR SETUP FOR FAILURE By Attorney Corey L. Scott So your case is over and you’re relieved that instead of sending you to prison, the Judge has chosen to place you on probation. But what exactly is probation? And what does it mean to be placed on probation? I know that to some these sound like silly questions but in dealing with many clients facing probation violations, I beg to differ because there seems to be plenty of misconceptions. Probation is when a convicted person’s (sometimes referred to as a probationer) sentence is conditionally suspended as long as they abide by special conditions placed upon them by the sentencing court. In other words, the person is allowed to go home and avoid jail or prison time provided that they follow the rules of the court and probation. The conditions of probation typically include things like: not committing additional crimes, not using illegal drugs or alcohol, maintaining employment, having no contact with certain people or places, participating and completing various types of counseling or therapy to address issues such as anger management, domestic violence, mental health, parenting classes, or substance abuse. According to the Bureau of Justice Statistics 43 percent of felony probationers and 62 percent of parolees will be rearrested or have their probation revoked and sent to prison within three years after being placed on probation or parole. Which begs the question, is probation an opportunity (sigh of relief) or a set up failure? It depends. As with most things in life, attitude is everything when it comes to being successful on probation. Probably the most important point I want to make to anyone currently on probation or facing the prospect of being placed on probation is that being allowed to serve a sentence on probation is first and foremost, a privilege, not a right. Serving a sentence on probation is an opportunity to pay a debt to society while living a normal life, i.e., living at home, being with your family, going to work and moving about freely for the most part. The alternative to being on probation and serving a suspended sentence is to be locked up and having someone else determine your every action from the time you wake up to the time you go to bed at night. So once someone is placed on probation, the only thing keeping them from living a normal life (with special conditions) versus being locked up is their ability to follow probation rules and care enough about themselves, their loved ones and their responsibilities to take care of business. It is it important to make this point because I have come across more than a few clients that treat probation as if it’s a right or something that they’re entitled to—these are the same people who although they’re on probation and facing the loss of their freedom, jobs and family—continue to smoke marijuana, fail to report to probation, miss appointments, fail to complete treatment and commit new crimes. At some point, the probation officer files a violation of probation and a hearing is held to determine if the person will be given another chance to complete probation or be sent to prison to complete their sentence. The hearing is nothing like a full blown trial where the State has to prove beyond a reasonable doubt that the person is guilty. Rather, in a probation violation hearing, the State/probation merely needs to show that by a preponderance of the evidence (more likely than not), that a violation of probation rules occurred. For example, a person could be placed on probation for one year but face prison or back up time of three years if they violate probation. So the person is faced with the choice to attend meetings, maintain a job, stop using illegal drugs and stay out of trouble for one year versus continue the same behavior that got them in trouble in the first place and go to prison for three years. The ironic thing is that most of the time the probation period is much shorter than the prison time a person gets for violating probation. Is probation a sigh of relief or a set up? It depends.