Sentencing Guidelines for Probation


Probation is not the "get out of jail free" card many people view it to be. Probation is actually a suspended jail sentence that keeps you under the State's control for a given number of years. Depending on the crime you committed and other mitigating factors, probation can ultimately be the sentence handed down, even if you assault or rob someone. Community service, fines and drug tests are usually part of any probation sentence.

Probation and the U.S. Justice System

  • The United States has more of its citizens incarcerated than any other country in the world. According to a 2008 article in The New York Times, the United States, which has only 5 percent of the world's total population, has an astounding 25 percent of the world's prison population. Overcrowding in state prisons and the subsequent crunch large prison populations put on state budgets has caused the United States to re-think its justice system. Probation has become an economically and judicially efficient punishment for first-time offenders, drug offenders and non-violent offenders who would have formerly been sentenced to prison. In 1994, President Bill Clinton signed the Violent Crime Control and Law Enforcement Act, which under Title V, authorized federal grants for additional probation officers to monitor non-violent offenders, as opposed to incarcerating them.

Probation After Guilty Plea

  • Just because your attorney or a prosecutor say you are "eligible" for probation if you sign a plea agreement does not necessary mean that will be your sentence. In Arizona, for instance, most plea agreement will set out a "presumptive" and "maximum" sentence you could receive by signing the plea, with the "possibility" of probation. Though most judges will respect the state prosecutor's recommendation, it is ultimately the judge's decision as to what your sentence will be. The sentencing judge may not like the fact you pled guilty to lesser crimes and may sentenced you to the presumptive or maximum penalty. However, if you are a first-time offender and the crime was victimless, you are likely to get probation and would have solid grounds for appeal if a judge sentenced you otherwise. Make certain your attorney goes through all stipulations of any potential plea agreement before you sign it.

Probation After Jury Finds You Guilty

  • If a jury finds you guilty of a crime, you will likely be sentenced to the statutory punishment for that particular crime. In some states, such as Colorado, judges have complete discretion whether to sentence the defendant to probation or to the statutory punishment provided by law. The U.S. Supreme Court decided the Texas "three strikes law" was not cruel and unusual punishment in Rummel v. Estelle, 445 U.S. 263 (1980). The defendant in that case had committed three separate, very minor thefts totalling around $200, and mitigating factors--the small amount of damage done--meant nothing at sentencing.

Probation Eligible Crimes

  • Believe it or not, there is no crime which you absolutely cannot receive probation for, including murder. In Dallas County, Texas, at least 47 murderers were sentenced to probation between 2000 and 2006. However, this is extremely rare and a virtual anomaly for Texas. Child molesters are frequently let out on intense probation with several stipulations, such as registering as a sex offender and not being allowed within a certain distance of schools. The truth is, there are no concrete probation guidelines for any crimes. It all depends on your attorney's skill set, the judge and mitigating factors.

Other Mitigating Factors

  • After you are found guilty or plead guilty, the probation department for your respective state will conduct a "pre-sentencing report," before the judge sentences you. It is here a recommendation for a sentence is made, based on information from the State and from the defense. Factor such as the age and maturity level of the defendant, any mental issues and the range of possible sentences will be considered. A low IQ or young children to care for are mitigating factor frequently used by defense attorneys when fighting for a probation sentence. If, during the crime, nobody was hurt and no property was damaged, the odds of a probation sentence are high.


  • Photo Credit 1935, Parker Brothers, Hasbro Inc.
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