Sentencing: Probation as an Alternative to Incarceration

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Some legal scholars refer to probation as a jail sentence that allows you to serve your time in the community so long as you follow the rules.  While close, technically probation is a judicially imposed “criminal sentence that, subject to stated conditions, releases a convicted person into the community,”[1] as an alternative to incarceration.  A criminal defendant can be placed on probation either before or after a period of incarceration.

Probation can be imposed for virtually any offense.  To illustrate, in Georgia, one can be placed on probation if he/she is unable to pay minor traffic fines within a certain period of time.  Also, in Georgia, there is the option of first offender probation for certain offenses.[2]  First offender probation is typically used for those defendants who have shown a dependency to drugs or alcohol and provides for dismissal of all charges provided the criminal defendant successfully completes the requisite conditions.[3]  First offender probation status is inapplicable to those charged of sexual offenses.[4]

As mentioned above, a sentence of probation is always followed by one of two types of conditions, General and Special.[5]  General conditions are those that all probationers generally must follow, regardless of the conviction, while special conditions must be in writing and expressed at sentencing.[6]  Conditions can include submission to drug testing, mandatory searchers, and mandatory treatment—usually paid for by the defendant.[7]    Other conditions can include: staying away from certain people or places; meeting with a probation officer on a regular basis; payment of fines; and pretty much anything the judge in your case can come up with.[8]        Another condition that some defendants seem to overlook is the condition to be subject to searches and seizures during his/her time on probation.  Some states have gone further to provide for this condition by statute.  In those states, the Supreme Court has stated that the admissibility of evidence found under these statutes are constitutional, even if the subsequent search or seizure was unreasonable.[9]  Moreover, a probated sentence can be prematurely terminated or revoked.  In Georgia, whether a defendant is released prematurely from probation is sometimes governed by statute.[10]

No matter the condition, if it is violated, a probationer could face a revocation hearing and as the Supreme Court of the United States has stated, in federal cases, a showing of a probation violation must result in revocation.[11]  However, in the event a probationer is unable to pay his/her fines or restitution, the Supreme Court has stated that automatic revocation is a violation of due process and cannot be accomplished without a showing that the probationer did not make a bona fide effort to pay and other alternatives of punishment were inadequate.[12] (Emphasis added).  In the event a term of imprisonment is imposed at the revocation hearing, it cannot exceed the term of imprisonment proscribed by statute of the original conviction(s).[13]

Revocation hearings are done similar to trial, however, there is a lower burden of proof.  Put clearly, in criminal cases one’s guilt must be proven beyond a reasonable doubt, whereas in a revocation hearing, the violation just needs to be proven by a ‘preponderance of the evidence.’  ‘Preponderance of the evidence’ is a legal term of art that refers to the weight of the evidence leaning to one side or the other.  Also, as a general matter, the rules of evidence and judicially-made rules, such as the exclusionary rule, do not apply to revocation hearings in Georgia.[14] Further, a trial court, at the conclusion of a revocation hearing is not required to explicitly state the reasons for its decision to incarcerate.[15]

As mentioned throughout this article, probation does appear to be the better alternative to incarceration.  However, probation can still affect the liberty of those subject to its control.  Having an attorney verse in relevant case law and statutes could assist a defendant in negotiating conditions and further aid in the prevention of irrelevant, unfair, or burdensome conditions..  An experienced criminal defense attorney, like those at Bixon law, can provide just that.  Allow us to assist you in retaining your liberties—even upon the imposition of a sentence of prob

[1] Black’s Law Dictionary (Bryan A. Garner, ed. Deluxe 10th ed., 2014, 2009).

[2] O.C.G.A. § 16-13-2(a)

[3] O.C.G.A. § 16-13-2(a)

[4] O.C.G.A. §17-10-6.2(b)

[5] O.C.G.A. § 42-8-104

[6] O.C.G.A. § 42-8-34.1(a)(2)

[7] O.C.G.A. § 42-8-104

[8] O.C.G.A. § 42-8-104

[9] Samson v. California, 547 U.S. 843, 843 (2006).

[10] O.C.G.A. § 42-8-103.1

[11] United States v. Granderson, 511 U.S. 39, 45 (1994).

[12] Bearden v. Georgia, 461 U.S. 660, 662 (1983).

[13] United States v. Granderson, 511 U.S. 39, 45-46 (1994).

[14] State v. Thackston, 289 Ga. 411, 416 (2011)

[15] Black v. Romano, 471 U.S. 606, 612 (1985).


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