Probation and parole are both alternatives to incarceration. Offenders placed on probation or parole are required to follow certain conditions to avoid going back behind bars. While they share some similarities, probation and parole have significantly different functions in the criminal legal system and operate under different systems. Probation is normally part of a defendant's sentence, while parole occurs much later in the process after spending time in prison.
This article provides an overview of the basics of probation and parole, the typical conditions a probationer or parolee must follow, and the consequences of probation and parole violations.
Probation vs. Parole
The main differences between probation and parole fall under the following categories.
- Timing—Probation occurs as part of sentencing; parole release happens at the end of a prison sentence.
- Decision maker—A judge places a defendant on probation; a parole board grants or denies parole.
- Oversight—A judge and probation officer typically oversee a probationer; parole officers and the parole board oversee a parolee.
- Revocation—A judge may revoke probation for a violation; a hearing officer or the parole board makes decisions regarding parole violations.
How Probation Works
Probation is a type of criminal sentence that allows a defendant to remain in the community (as opposed to being in jail or prison). The judge makes decisions regarding probation, including conditions and consequences for violations.
Probation Sentences
Typically, when a defendant is convicted of a crime and sentenced to probation, the judge “suspends” the jail or prison sentence while the defendant is on probation. As long as the conditions of probation are met, the defendant is allowed to remain out of jail. In some jurisdictions, judges also have the option of sentencing a defendant to serve a certain amount of time in jail as a condition of probation, which would be served before the defendant is released on probation.
Eligibility for Probation
Unless a law specifically prohibits it, defendants convicted of misdemeanors and felonies are typically eligible for probation. A statute might prohibit probation for violent felony offenders or repeat offenders or when a mandatory minimum sentence applies.
The sentencing judge will ultimately make the call on whether to allow probation. Common considerations include a defendant's criminal history, the circumstances of the current crime, and public safety concerns.
Types of Probation
There are generally two types of probation: formal and informal.
Formal probation is sometimes referred to as “supervised probation” and typically requires the defendant to report to a probation officer. Felony probation is almost always supervised, whereas misdemeanor probation might be supervised or unsupervised.
Informal probation—which is typically imposed only in misdemeanor cases—is sometimes referred to as administrative, bench, or court probation. This type of probation doesn't require a defendant to report to a probation officer. Instead, the defendant will report information directly to the court relating to their probation terms, such as proof of payments for fines and fees, completion of community service hours or attendance at counseling or treatment, or to update a change of address.
Purpose of Probation
Probation allows a defendant to serve their sentence in the community. This offers several advantages for the defendant and the justice system. A defendant on probation can remain a productive citizen by working, going to school, taking care of their children, or going to treatment or counseling. For the system, probation frees up beds in jails and prisons while allowing a judge and probation officer to keep tabs on the defendant.
Does Probation Go on Your Criminal Record?
Yes. A criminal record consists of arrests, convictions, and the specifics of any sentence. Probation is a type of sentence, just like incarceration and fines. The criminal record would specify the charges, convicted offenses, and sentence terms, including probation.
How Parole Works
Parole is the supervised release of an inmate from prison into the community. State correctional authorities, such as the department of corrections and the parole board, determine eligibility, conditions, and ramifications for violations.
Eligibility for Parole
Offenders become eligible for parole only after serving a required portion of their sentence, which could be 20%, 50%, or more. The exact amount of time depends on state law, the inmate's crime and sentence, and the inmate's behavior in prison. Some offenders are not eligible for parole due to their conviction, such as those serving life sentences for murder.
Parole and Early Release From Prison
Generally, the time the offender spends on parole is considered part of the sentence. Inmates may be released on parole by a parole board decision, known as “discretionary parole,” or according to the requirements of a statute, known as “mandatory parole.” A parolee usually reports to a parole officer who monitors the parolee’s progress in fulfilling the conditions of parole. Similar to probation, a parolee can be returned to prison for a violation.
Purpose of Parole
The main purpose of parole is to help the parolee successfully reintegrate into the community after serving time in prison. To achieve this purpose, most parole systems aim to rehabilitate offenders while providing safety to the community. Rehabilitation might come in the form of job or housing assistance, counseling or medical care, and group support.
General Conditions of Parole and Probation
Whether placed on probation or parole, a defendant's sentence hangs over their head as an incentive to follow certain rules known as “conditions” or “terms.” Generally, the conditions of probation are similar to the conditions of parole. However, probation conditions come from the court, while parole conditions come from the parole board or department of corrections.
Typical conditions include requiring the probationer or parolee to:
- report as required and obey all directions of the supervising probation or parole officer
- pay supervision fees, fines, and victim restitution
- not use or possess controlled substances
- submit to testing for drug or alcohol use
- complete a substance abuse evaluation and follow the recommendations of the evaluator
- complete community service work
- not leave the state without permission
- find and maintain employment or schooling
- not change employment or residence without permission
- consent to the search of your person, vehicle, and residence
- obey all laws and truthfully answer all questions by the probation or parole officer, and
- not possess any weapons.
Probation and parole conditions vary depending on the jurisdiction and nature of the offense. Some offenses require offenders to adhere to additional conditions. For example, a defendant convicted of molesting a child might be required to report as a sex offender, complete sex offender treatment, and stay away from areas where children typically congregate (such as parks, schools, and playgrounds).
Consequences of Probation Violations
Failure to abide by probation conditions can result in arrest, modification of conditions, revocation, and incarceration.
What Is a Probation Violation?
Probation violations are commonly divided into two types—technical and substantive. Technical violations refer to failure to follow rules, such as a positive drug test, missed check-in, or failure to attend counseling. A substantive violation usually means the person committed a new crime while under probation.
What Is a Probation Violation Hearing?
Generally, a defendant who’s accused of violating probation is entitled to a hearing before a judge. A probation officer or prosecutor may initiate the hearing upon learning of violations. Or, the judge might set a hearing if the defendant fails to show up for a scheduled court hearing.
At the hearing (before a judge without a jury), the prosecutor must prove that a violation occurred by a preponderance of the evidence, a much lower standard than beyond a reasonable doubt.
Does a Probation Violation Mean Jail Time?
If the probationer admits or the judge finds, after a hearing, that the probationer committed the violation, the judge will decide whether to revoke or reinstate probation. Revocation is the harshest punishment and generally means incarceration.
Revoke and jail time. A judge might decide to revoke probation if the defendant commits a crime while on probation or has racked up multiple technical violations. When probation is revoked, the "stayed" portion of their sentence goes into effect, which is usually jail or prison time.
Reinstate probation. The judge can alternatively continue the defendant on probation—despite having found a violation—with or without modifying the conditions. Typically, if a judge does opt to modify the defendant's conditions, the modification will be related to the violation. For instance, if a probationer violates probation by drinking alcohol, the judge might modify the probationer’s conditions to include continuous alcohol monitoring.
Consequences of Parole Violations
Parole violations are similar to probation violations and include technical and substantive violations. And, like probationers, parolees are normally entitled to a hearing when accused of violating a term of parole. However, parole violation hearings are generally brought before the parole board rather than a judge. The parole board (or hearing officer from the parole board) decides whether the parolee committed a violation and, if so, what the consequences will be.
Failure to comply with parole conditions can result in the offender being returned to prison to finish the original sentence. Other sanctions for parole violations might include jail time, modification of parole conditions, community service, house arrest, or electronic surveillance.
Talk to a Lawyer
If you have questions about probation or parole, speak to a criminal defense attorney.